Category Archives: Public Interest Law

The Finney Law Firm was retained to represent Councilmember Christopher Smitherman in the matter of an ethics complaint that was filed against him by a Cincinnati attorney arising from the Mahogany’s loan default.  This week, that ethics complaint was dismissed as being entirely without merit.

The background to the matter is that in early 2012 the City made significant loans and grants to Mahogany’s Restaurant in order to bring an African-American-owned and -themed restaurant to the Banks.  Smitherman realized from the initiation of the project that the operator (Liz Rogers) was not qualified for an extension of City credit.  Unbeknownst to Smitherman, before his vote on Council, Rogers had approached his brother (Albert Smitherman) for some advice about how to complete the construction project, which Albert provided without charge.

After Rogers’ default on the loans, her attorney pointed the finger at Smitherman, claiming (falsely) that Smitherman’s votes and public pronouncements against the project were because Rogers has been approached by and later spurned Albert Smitherman’s company.  The allegations were completely and demonstrably false.

This year, after Rogers’ loan default, Rogers’ attorney filed a Complaint with the Ohio Ethics Commission containing the false allegations, presumably to achieve some benefit in getting City Council to forgive her loans.

The Ohio Ethics Commission has a multi-step process to consider Complaints brought before it: staff review, initial Commission review, investigation and final disposition.  The Smitherman Complaint was so completely lacking in merit, it was dismissed at the very first stage — staff review.

The Finney Law Firm was proud to represent both Christopher Smitherman in the ethics matter, and Albert Smitherman in the allegations made against his company.

For decades, campaigns in Ohio have battled over the supposed truth or falsity in campaign advertisements before a 7-member panel of political appointees of the Governor, the Ohio Elections Commission.

Because of important wins of the Finney Law Firm and other able counsel, the jurisdiction of the Elections Commission to weigh in on such disputes has been substantially narrowed in recent months, moving that debate to where it should be — in articles in the media, in conversations at the neighborhood bar, and between campaigns to duke it out in their earned and paid communications .

However, finally the jackboot of the Elections Commission has been lifted from our throats.

Read here a story in this vein from the Columbus Dispatch.  This is as it should be.

The second in a series of cases arising from the twin wins of the Finney Law Firm at the United States Supreme Court came back before Judge Michael Barrett two weeks ago on cross motions for summary judgment (the Supreme Court proceeding having resolved only the standing issue).

This second case, COAST v. Ohio Elections Commission, addressed whether the Ohio Elections Commission — a politically appointed body — can sit in judgment of statements made during the course of a ballot issue campaign.

Yesterday, Judge Barrett decided they cannot — at least preliminarily, finding that the Plaintiffs have a high likelihood of success on the merits of the case.  Judge Barrett’s short decision on Plaintiffs Motion for Preliminary Injunction, is here.   Judge Barrett has promised a longer decision on the motion for permanent injunction at a later date.

This decision follows closely on the heels of the decision by Judge Timothy Black in Susan B. Anthony List v. Ohio Elections Commission striking  down a companion statute in Ohio allowing judgment and punishment by the Ohio Elections Commission of statements made during campaigns for candidates for public office.  His decision permanently enjoining that statute is here.  The Ohio Elections Commission has appealed that decision to the 6th Circuit, and it is possible that one or both of these cases will end up before the U.S. Supreme Court again.

We will keep you informed of developments in these two cases as they occur.

 

 

The District Court has ruled in in favor of the Plaintiff in Johnson Welded Products v. Sebelius, which sought to expand the SCOTUS decision in the Hobby Lobby case to all contraceptives.

There were four major cases originally filed relative to the harassment and delays sustained by Tea Party and liberty-oriented groups in seeking 501(c)(3)and 501(c)(4) status.  Three were filed in the Federal District Court for the District of Columbia, and one was filed in the United States District Court for the Southern District of Ohio.  It is this last case in which the Finney Law Firm is co-counsel.

Today, Federal District Court Judge Reggie Walton dealt a blow to the Plaintiffs in two of those cases after the IRS finally granted tax exempt status to the remaining Plaintiffs, ruling the matter moot, and thus dismissing both Complaints.  Those decisions are here (True the Vote, Inc. v. Internal Revenue Service) and here (Linchpins of Liberty v. United States).

In the third case, Z Street v. John Koskinen (the Plaintiff is a pro-Israel group harassed by the IRS in a manner similar to the IRS harassment of Tea Party groups), the District Court did allow the claims in that case to survive a Motion to Dismiss, but discovery has been stayed pending the outcome of an interlocutory appeal of that decision, which could take another 18 months or more.

However, our firm’s case, NorCal Tea Party Patriots v. Internal Revenue Service, in front of Federal District Court Judge Susan Dlott, has survived a withering Motion to Dismiss from the IRS’s phalanx of attorneys and shortly will be proceeding with discovery.

Thus, while we fervently hope the three cases noted above survive their appeals and proceed to discovery and judgment, at present the Cincinnati case is the sole surviving litigation to get to the bottom of the conspiracy to deprive liberty-minded citizens of fair treatment by the IRS, to achieve justice for these targeted groups, and to enjoin the IRS from ever again singling out individuals and groups for discriminatory treatment based solely on their viewpoints.

We are proud to be a part of this landmark litigation and excited for the next steps.

 

 

 

 

 

As our readers are aware, the Finney law Firm, LLC has ben retained to represent the Ohio Republican Party in its claims against Ed FitzGerald and Cuyahoga County for public records sought by ORP relating to FitzGerald’s use of his key card to access the County administrative buildings. Indeed, the original request for the information came from the Cleveland Plain Dealer, and FitzGerald refused their requests for the information as well. A few updates on this case:

• The Supreme Court has set a briefing schedule that most assuredly will see that the case is resolved after election day.
• The Supreme Court Friday rejected FitzGerald’s belated request to send the case to mediation.
• Plaintiff sought FitzGerald’s deposition and that of the County Sheriff, in part to explore the defenses they have raised to the release of the records — that some unspecified threats against FitzGerald militate against release of the records for “security” purposes.  FitzGerald and the Sheriff have filed formal Motions with the Court to prevent those depositions from proceeding.  The Court has not ruled on those motions.
• Late last week the Defendants submitted their evidence, including the Affidavit of a deputy Sheriff.  We have now sought the deposition of that deputy sheriff as well, and the defendants have indicated they intend to oppose holding that deposition as well.

So, as you might expect, the litigation appears to be mired in procedural motions for now.  We anticipate the Supreme Court will clarify many of these issues in short order.

For those following the COAST “Tweets” case, three years into the case we had oral argument Friday before Judge Mike Barrett on our Motion for Summary Judgment. The argument went very well, handled by COAST General Counsel Christopher Finney.

As background, COAST Treasurer Mark Miller on behalf of COAST was “tweeting” about the second Streetcar ballot issue in the 2011 election (see this NYT article). Rob Richardson, Jr. of Cincinnatians for Progress trumped up “false claims” charges against COAST, which the OEC dismissed. But COAST decided to end the OEC’s reign of intimidation.

This case and the Susan B. Anthony List companion case, could spell the end to their “false claims” jurisdiction.

Judge Barrett promises a decision on the preliminary injunction soon (perhaps next week), with a decision on the merits of the case perhaps before year’s end.

On August 18, 2014, the Sixth Circuit Court of Appeals rendered a decision in N.W. v. Boone County Board of Education, which denied IDEA reimbursement to the parents of an autistic child. The parents filed the action under the Individuals with Disabilities Education Act (“IDEA”) arguing that the school district had failed to offer a “free appropriate public education” (“FAPE”) to their child, as required by IDEA.

This case involved an autistic student who had been diagnosed with apraxia. Under the student’s Individual Educational Program (“IEP”) the student had been placed at St. Rita’s School for the Deaf. However, the parents became dissatisfied with St. Rita’s program, and unilaterally removed their son and placed him in a private school in Cincinnati without the local school district’s consent.
After unilaterally placing their son in a new private school, the parents sought reimbursement of tuition and transportation costs from the school district. The school district, however, maintained that it could provide the student with FAPE. The parties attempted to mediate the placement issue for three years, without success, and eventually litigation ensued at the administrative level, and then before the federal courts.

The parents filed suit in the District Court offering two main arguments for reimbursement: (1) that the school district’s plan failed to provide a FAPE; and (2) IDEA’s “Stay-Put” provision permitted the student to continue attending the private school and required the school district to reimburse the parents for tuition and transportation expenses at such school until the dispute was resolved.

Despite finding that the parents failed to show that the school district denied their son a FAPE and that the parents unilaterally withdrew their child from the district’s schools, the court ordered the school district to reimburse the parents for the tuition and transportation costs incurred by attending the private school. The school district appealed the decision to the Sixth Circuit, which reversed the decision.

On appeal, the Sixth Circuit held that the IDEA does not permit the courts to order reimbursement absent a finding that a school district failed to offer a FAPE. The Sixth Circuit relied on the district court’s determination that the parents had failed to prove the school district did not offer a FAPE, which the parents did not appeal to the Sixth Circuit.

Moreover, the Sixth Circuit ruled that the IDEA’s “Stay-Put” provision did not apply to the student. The Sixth Circuit stated that in order to qualify for stay-put protection and reimbursement, the school district’s approval is necessary for the student to be “placed” at a school. Thus, the Sixth Circuit determined that the student had not be “placed” at the private school because his parents unilaterally enrolled him at the private school, without the school district’s approval.

Under the IDEA, a FAPE must be provided to all disabled children who are 2 to 21 years of age. A FAPE is to be provided at the public’s expense and in conformity with each disabled child’s IEP. According to the Sixth Circuit, however, a school district will not be forced to reimburse parents for expenses incurred for private schooling when the parents unilaterally enroll their child in private school, without establishing that the school district failed to offer a FAPE to the student.

The Dispatch has the story here.

The Finney Law Firm is counsel to the Smitherman for City Council Committee.  As he ran for reelection in 2013, a dark-money group called Cincinnatians for Jobs Now produced and ran hundreds of thousands of dollars in negative advertisements disparaging Council member Smitherman, encouraging voters to oppose his re-election to Council, and  promoting the election of certain other candidates for Mayor and City Council.  The shadow committee filed no campaign finance reports, which would have identified its income and expenses.

Our firm has filed a Complaint with the Ohio Elections Commission to force compliance with campaign finance reporting laws.

This week, the Ohio Elections Commission ruled on pending motions on discovery, and required Cincinnatians for Jobs Now to produce documents and submit participants to depositions, as sought by our client.

You may read the OEC order here.