Supreme Court Update: Access to Public Records Seriously Curtailed

In it recent ruling in Plunderbund v. Department of Public Safety, the Ohio Supreme Court has seriously undermined the Ohio Public Documents Act.  The case arose due to statement in 2012 that Governor Kasich’s schedule could not be provided to the Democratic Party due to alleged threats he was receiving daily.  Plunderbund requested incident reports of the threats, but the Department of Public Safety refused to provide the documents.  They refused to indicate even the number of threats received.  Public Safety created a bizarre cloak and dagger scenario, which is undoubtedly fictional, about why the information cannot be revealed.

Plunderbund filed for a writ of mandamus pursuant to the public documents act and requested that the Court review the documents that Public Safety was hiding to determine if there was any legitimate reason to conceal them.  The attorneys general handling the case stated to the Court that they never saw the documents.  So two state attorney presented evidence to the Supreme Court without ever checking to determine if the evidence was even truthful.  The Court refused to look at the documents to determine whether Public Safety was lying about the content of the documents.

Although it is not illogical that the Supreme Court would find certain security documents to be confidential, the fact that they refused to review what Public Safety was hiding sets a precedent that is very damaging to the state.  This opens the door to allowing any agency to hide any document as a security document because the Courts will not determine the credibility of government witnesses and will except their testimony without reviewing the actually documents.

 

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Supreme Court update-Charter Schools

Public school funding has been an issue in Ohio for many years since the Ohio Supreme Court determined in the DeRolph case the the Ohio Constitution requires that the state provide a “though and efficient” system of public K-12 education.  The General Assembly has never fulfilled the goal.

Public school controversy in Ohio is further fueled by right wing “school choice” advocates that want privately run, or charter schools, to be the predominant type of k-12 schools in the state.  In Ohio these schools can be either be profit or non profit corporations.  Many of these schools have proven to be pretty worthless, and far from “though and efficient.”  Some closed mid term leaving students in the lurch.  The entire concept of profit based K-12 schools is questionable and creates a situation that is ripe for abuse.  Many, including this site, find the entire concept of having to pay large sums of money in property tax to run schools that profit wealthy school owners offensive.

To further complicate the picture, many Ohio Public Schools, including Columbus City Schools have been caught rigging numbers data involving school enrollment that effects funding, further eroding public confidence in the entire system.  Meanwhile, the state continues to fail student by not allocating sufficient funds from state coffers to cover school needs and a higher and higher percentage of school costs are being shifted to local levies and property taxes.

One of the major players in the Ohio charter school sector is White Hat Management, a company that is very connected with Ohio Republicans in the Statehouse and with Governor Kasich.

White Hat has been involved in a variety of cases involving charter issues before the Ohio Supreme Court and another one has been accepted for this term.  In Hope Academy v. White Hat Management, the issue involves who owns property that is purchase by White Hat with public tax dollars  as managing agent for the charter schools.  Since White Hat is a profit corporation, of course they want to acquire anything of value from the taxpayers that increases their profits.  The issues before the Court for review are:

Proposition of Law No. 1: Public funds paid to a private entity exercising a government function, such as the operation of a community school, retain their character as public funds even after they are in the possession and control of the private entity. Although the private entity may earn a profit out of the public funds, such profit is earned only alter the private entity has fully discharged its contractual, statutory, and fiduciary obligations.

Proposition of Law Number. 2: When a private entity uses funds designated by the Ohio Department of Education for the education of public-school students to purchase furniture, computers, software, equipment, and other personal property to operate a commtinity school, the private entity is acting as a purchasing agent and the property must be titled in the name of the commuiuty school.

Proposition of Law No. 3: A private entity that agrees to operate all functions of a community school has a fiduciary relationship with the community school. Although the private entity may earn a profit for the services it provides, it must act primarily for the benefit of the community school.

The case is just being briefed at this time and no decision is likely until next year.

 

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Ohio Supreme Court Update/JobsOhio

This blog is being expanded to cover not only executive and legislative actions of interest in Ohio, but to include Ohio Supreme Court decisions and actions which impact political issues.  The Court has a variety of political topics on its docket that will be discussed in a variety of posts this year.

In November, the Court heard oral arguments in ProgressOhio vs. JobsOhio, a case which challenges the constitutionality of Jobs Ohio, John Kasich’s privatized economic entity.  The Court is likely to be issuing this decision in the next few months.

Despite clear constitutional problems with the JobsOhio, Attorney General Mike DeWine blocked a decision on the merits of the case by raising standing issues. Although Ohio has long recognized that citizens of the state have the right to bring an action challenging the constitutionality of new legislation based upon a broad public right, a variety of interests, primarily from the right, have worked to curtail this right over the past 15 years.

In the mid 90’s Ohio passed what is referred to as “tort reform” legislation which greatly curtailed the availability of tort claim remedies for personal injuries in Ohio.  This arose from the belief, in part, that massive judgments for injuries were often excessive and unfair.  It was also believed by these interests that punitive damages in particular needed to be controlled since they injured businesses unfairly.

Ohio trial lawyers challenged this new law by bringing the case State ex rel. Ohio Academy of Trial Lawyers v. Sheward 1998 Ohio 276.  The Court struck down major aspects of the legislation.  Many in the General Assembly and elsewhere in Ohio were very angry about this decision.

Ohio Academy is a lengthy case with an extensive discussion of Ohio constitutional history and analysis of the Court’s original jurisdiction.  In Ohio, the Supreme Court is an appellate court, but also has jurisdiction to hear a limited number of cases, primarily  writs, as original actions.  Writs are suits which involve requests to order individuals, generally government officials, to take certain actions.  They do not involve money damages, although sometimes the prevailing party will obtain a money judgment from a writ suit.  Much discussion in Ohio Academy, revolved around whether the case was properly filed as an original action.  It had very little to do with standing of the lawyers to bring the action.

Soon after this major loss, government attorneys around the state began misusing and misreading the Court’s statements in Ohio Academy to improperly curtail the right of the public to challenge legislation based upon public interest standing.  The Tenth District Court of Appeals issued a line of cases over the past 12 years misquoting the case in a way which significantly damaged the law.

When the JobsOhio case reached the Tenth District, it was argued by Victoria E. Ullmann who had been primarily responsible for the litigation from its inception.  She had also testified against JobsOhio while it was still in committee in the Ohio Senate.  She was able to convince the Tenth District to correct years of improper interpretations of Ohio law and establish a logical standard for determining when public interest standing was appropriate in a case.  Although their holding was too narrow to encompass standing for the plaintiffs in JobsOhio, it was a significant holding that vastly improved  case law in the Tenth District on this issue.

Ullmann did not argue the case for the relators at the Supreme Court, but appeared as amicus.  The relators, all of whom are men, insisted on replacing her with a much younger and less experienced male who had no knowledge of the case.  The state also used a different attorney than had argued the case in the Tenth District.  Only JobsOhio retained the attorneys that were truly knowledgeable of the case, and they were given only two minutes of oral argument time.

The oral arguments in this case, as well as the briefing on both sides, with the exception of Ullmann’s amicus brief and JobsOhio’s brief to a lesser extent, demonstrated a lack of understanding of the case and ignorance of the 10th District Court of Appeals decision which was the basis of the appeal.  Despite the fact that presentation of this case has been damaged by these changes, good arguments in favor of public interest standing are available to the Court to support this issue.  A good outcome and decision remain possible despite the significant missteps by the plaintiffs and defendants.

 

 

 

 

 

 

 

 

 

 

 

 

 

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Ted Strickland’s Greatest Hits-2012 Election Cycle

Ted at the DNC Convention

Ted everywhere else:

Election night 2012–Victory

Bye Mittens.

 

 

 

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Nina Turner’s Greatest Hits 2012 Election Cycle

I really admire Ohio Senator Nina Turner and she was there fighting for us this year.

 

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Ted Strickland teaches at Harvard as part of the fellowship program.

Our former governor, Ted Strickland has spent the spring semester teaching at Harvard.  Here is the synopsis of his workshop on class warfare.

Class Warfare: The Politics of the Rich, the Poor, and the Struggling Middle Class

Class Warfare: The Politics of the Rich, the Poor, and the Struggling Middle Class

A study group led by Ted Strickland
Tuesdays, 4:15-5:45pm
L166
America is confronting challenges which are unprecedented in modern times.  The economic circumstances facing many individuals and families are causing questions to be asked about the long-term viability of our democratic system. Confidence in our elected leaders is at an all-time low. Poverty is steadily increasing, especially among certain demographic groups.  High unemployment and under-employment levels seem intractable. Wealth is ever more concentrated among the richest 1% of Americans while the middle class is shrinking. Our elementary and secondary schools are dealing with overwhelming social problems and finding it hard to successfully prepare students for college or other post-secondary training leading to meaningful employment. Higher education is increasingly costly and becoming out of reach for many low and middle income families.  Millions of our fellow citizens go without needed health care. Political polarization has increased at an alarming rate and shows no signs of abating. We are a divided people and this division can be seen in the rise of the Tea Party and the Occupy Wall Street movements. It can also be seen in the bitter political atmosphere in Washington and throughout state capitals. This division is preventing us from working together to find solutions to our problems.
These are some of the critical issues that call for a reassessment of how we govern ourselves. Can we have an economy that provides every individual with the opportunity to be successful? Can we adopt policies that will lead to a shared prosperity? Can we have a government that works for all the people?  Put simply, can we develop a national consensus that the pursuit of the common good should take precedence over self interest?
This study group will examine some of the political, economic and social answers to these questions.

WEEK ONE:  February 14, Class Warfare: The American Dream (vs) the Gospel of Wealth
We will begin this study group with introductions and a discussion of expectations. The general purpose of the group and hoped for outcomes will be shared as we set the stage for eight weeks of good fellowship and stimulating interaction.  The larger portion of the time will consist of a short presentation followed by group discussion.
In his book, The American Dream vs. The Gospel of Wealth (2006), Norton Garfinkle says that, “Americans confront a choice between two fundamentally different economic visions for America.  The historic vision of the American Dream is that continuing economic growth and political stability can be achieved by supporting income growth and economic security of middle-class families without restricting the ability of successful businessman to gain wealth.  The counter belief, based on the Gospel of Wealth, is that providing maximum financial rewards to the most successful businessmen is the way to maintain high economic growth to benefit all Americans.”
As we begin this study group we will draw upon the work of Garfinkle to help us understand the history of some of the moral, economic and political divisions that have proceded, and are now influencing, the current debate in America referred to as “Class Warfare.”
We will look at the factors which led to “the gilded age” and the promotion of “social Darwinism”.  We will acknowledge the efforts to bring about economic reforms and the influence of Teddy Roosevelt.  We will consider the “great depression” and the resulting “New Deal” programs.  Finally, we will examine the re-emergence of the “Gospel of Wealth” which preceded and perhaps contributed to the most recent “great recession.”
I hope this abbreviated presentation and resulting discussion will prepare the group for the sessions to follow.

WEEK TWO: February 21,  Organized Labor’s  role in building and sustaining a strong  middle class
In spite of the many contributions that organized labor has made to the growth of the American middle class, it is now under attack from powerful political and corporate interests.  The recent political upheaval in Wisconsin resulting in public employees being deprived of bargaining rights, and the “citizens referendum” in Ohio which successfully turned back the anti-worker Senate Bill 5, are but two examples of this anti-labor movement.
Perhaps it is time that American’s are reminded of the ways  in which labor has changed our lives, built a strong middle class, and made life better for all of us, whether we belong to a labor union or not.  The 40-hour work week, overtime, the end to child labor, safe working conditions, the minimum wage, employer-based health care, family and medical leave, unemployment compensation, and disability insurance, are but some of  the programs that have been developed through the advocacy of labor unions.
So given these accomplishments, why are unions seeing declining memberships and why are they feeling so embattled today?  Why do many younger people say that unions were needed in the past but are no longer necessary? Why do so many of our political leaders in the Republican Party and many of our corporate leaders embrace such strong anti-union sentiments? Are the attempts to diminish the power and influence of labor unions an example of ”Class Warfare”?  How should unions respond to these challenges in order to remain a vital force within America’s political and economic power structure?
These are some of the question we will explore with our guest presenter, Andy Stern
WEEK THREE: February 28,  Poor Children: The Casualties of Class Warfare!
The special guest presenter for this group will be Mariam Wright Edelman, President of the Children’s Defense Fund.  I am pleased that she can share with us the knowledge and passion with which she advocates for America’s children.  The crisis facing poor children and their families was presented in stark detail in The State of America’s Children 2011, a report produced by the Children’s Defense Fund. The report found that with unemployment, housing foreclosures, and hunger at historically high levels, children’s well-being is in jeopardy.  In the United States one in five children is poor and children are our poorest age group.  In 2009, millions of children fell into poverty due to the economic downturn.  Today, 15.5 million children live in poverty and every 32 seconds another child is born poor.  Perhaps most disturbing is the fact that the gap between rich and poor families continues to grow.  Income gains for the bottom 90 percent were completely wiped out by the recession, leaving the average income of the bottom 90 percent at its lowest level in more than a decade.  Poor children and their families are casualties of a social, educational, economic, and political system that has failed them.  Ms. Edleman will help us to better understand the problems facing these children and challenge us to advocate for change.

WEEK FOUR:  March 6, The “Occupy”  Movements  – Are they tangible expressions of Class Warfare?
The guest presenter will be Mathathias Swartz ,columnist and journalist.  Mathathias writes for the New Yorker and has followed the occupy wall street and related occupy groups that have appeared throughout American cities.  He has written several insightful articles on the subject and has appeared on the Charlie Rose PBS show to discuss the movement.  In this session Mathathias will share his ideas regarding the conditions leading to the demonstrations that started in New York and quickly spread across the country.  He will share his opinions about the influence the movement has already had, and perhaps will have, on the public policy and political debates  as the Presidential campaigns unfold.
During the discussion we will question whether the rise of the Tea Party and the Occupy Wall Street movements are temporary expressions of discontent or are they signs of serious and persistent problems within our democracy?  Are they relevant to the debate over “class warfare?”

WEEK FIVE:  March 20, Who can impact Educational Access and Quality?  Governors?  Mayors?  School Committees?  Can anyone make a difference?
This week’s session will be a combination of two study groups.  We will join with the study group: The Politics of Education:  Who speaks for the students?  Guests include:  Mayor Kathy Taylor and the Chair of the School Committee.  The session will be moderated by Margaret McKenna.

WEEK SIX:  March 27, Opportunity Nation: A Shared Plan to Restore Opportunity
The guest presenter will be Mark Edwards, Executive Director of Opportunity Nation, which describes itself as, “… a national campaign to promote opportunity, social mobility, and access to the American Dream.”  The organization believes that, “when social mobility grinds to a halt, we are in danger of losing the best of America.”
In this session we will consider how businesses, political leaders, educational institutions, non-profits, and other civic organizations can work together to increase opportunity for our people.   Opportunity Nation believes that ,”No political party or ideology has a monopoly on good ideas to increase opportunity … and that only by cutting across program  and   In its vision statement, Opportunity Nation says that, “We believe that both markets and government have important roles to play in encouraging opportunity.  Working markets provide incentives for effort and self-improvement.  Private employment is a source of both advancement and dignity.  But government can and should help in preparing individuals for economic success, as well as providing an effective social safety net.  We reject a simplistic ideological conflict between markets and government.  America needs a combination of smart government and a strong economy.”
Following Mark’s presentation, we will discuss the barriers to achieving the goals and objectives of this bipartisan, optimistic organization.

WEEK SEVEN:  April 2.   A Comparison of two World Views:  Rational Self-Interest vs. Concern for the Common Good
For the concluding session we will briefly review the preceding sessions.  I will then lead a discussion related to the inherent conflict between   “rational self-interest” and concern for the “common good.”   We will consider how this conflict is reflected in Keynesian economic theory (demand driven) vs  Supply-side economic theory  (trickle down).  We will wrap-up our time together by discussing if and/or how our country can unite to sign a peace treaty or at least declare a temporary cessation of Class Warfare hostilities .

WEEK EIGHT: April 10, America’s Safety Net Programs:  What can we learn from European Countries
The guest presenter this will be Matt Browne.  Matt is a Senior Fellow at the Center for American Progress in Washington, DC.  A British citizen, he was a part of Prime Minister Tony Blair’s administration for several years.  He has also worked internationally and has written extensively about the current financial conditions in Europe.   Matt is uniquely qualified to present the social safety net programs found in Great Britain and other European countries (health care systems, unemployment compensation programs, disability insurance, child care provisions, etc.).
Following Matt’s presentation we will have an opportunity to discuss the strengths and weaknesses of the American and European approaches to social welfare programs.  We can discuss how our system compares to those in the more socialistic societies.  Finally we can discuss/debate whether or not America should move adopt a more “European” approach.

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JobsOhio case moves to Tenth District Court of Appeals.

There have not been many posts here lately due to the expedited schedule for the JobsOhio case in the 10th District Court of Appeals.  The appeal was filed in late December and briefing was completed in January.  The case was argued before a three judge panel consisting of Judges Gary Tyack, Julia Dorrian and Lisa Sadler.

The issue at this time concern only whether the plaintiffs have the ability to bring the action under Ohio law allowing standing for plaintiff regardless of any personal injury.  In Ohio, no personal injury needs to be alleged if the matter is one of great public interest and importance.   Plaintiff’s argue that major public policy changes dismantling a state agency and replacing it with a secret private entity is clearly a matter of great public importance.  Defendants have no actual response to this and instead argue that one case determined in the 1990’s eliminated public interest standing.  They argue that this is the case despite the fact that the case itself does not say that and several cases that followed through the 2000’s further confirmed that public interest standing is alive and well in Ohio.

The decision by the court is expected within the next few months.

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Highway to Hell

Elected officials both here and the Ohio Democratic officials in Washington are beginning to recognize the perils of Johnny’s runaway plans to privatize a variety of state functions and properties.  He actually asked to use $1.5 million of federal highway dollars to study how to sell off the turnpike.  Scarier still, the U.S. Department of Transportation approved it–yikes!  (Can’t either of these governmental units find a better way to spend our money than to spend it on studying how allow private companies to make a profit on a state asset?)   The Federal Highway Administration says the proposal submitted by the Kasich Administration did not really admit it was for a study on privatization.  Not much honesty involved there.  “However, the request for proposal subsequently written was for a services contract to solely support privatization of the Ohio Turnpike — which is not an eligible use of SPR funds,” said a FHA official.  Congressman Tim Ryan  who led the fight against the $1.5 million reward, called Kasich’s plan to privatize the Ohio Turnpike “radical:” “It’s not an innovative idea to sell the Ohio Turnpike,” he said. “It was an innovative idea when Indiana tried it; now it’s proven to be reckless and dumb.”

Source for factual material and quotes: Columbus Dispatch.

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Building the case against Issue 2.

As we continue to move toward election day here in Ohio, Building a “Better” Ohio continues with its disturbing behavior–this time granny bashing.  Not surprisingly, Beth Hansen, Kasich’s chief of staff is on leave and is in charge of media strategy for BBO.  Although it is common in candidate campaigns to quote opponents out of context or otherwise manipulate footage of them, that is generally not done in Issue Campaigns.  But the trend setting BBO is on the cutting edge of sleaze by doing a cut a paste job on granny, misappropriating her image, and using her in a misleading ad.  If these guys cannot do better than this they just need to throw in the towel and stop wasting money on this tripe.  Despite the attempt of the BBO to drag politics to a new low, many television stations are refusing to be misused and injure a private citizen.

Former Democratic Gov. Ted Strickland told The Associated Press in a telephone interview that the use of Quinn’s image in the Building a Better Ohio ad was “deceitful and dishonorable.”

Strickland speculated that it could cause a backlash against the law’s supporters. “I think it could be the turning point in the campaign, quite frankly,” he said.

“What they have done here, I think, demonstrates the level of deceitfulness that they will use in order to try to win. This is really as blatant as anything I’ve seen,” Strickland said.

He said the supporters purposefully distorted the woman’s image and exploited her.

Sources: Youtube, Associated Press, Plunderbund

Original ad:

<iframe width=”560″ height=”315″ src=”http://www.youtube.com/embed/Fua8XliZk1Q” frameborder=”0″ allowfullscreen></iframe>

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AFL-CIO Telephone Town Hall

I attended the AFL-CIO telephone town hall for the kick off of the Repeal SB5 campaign.  Although I am not a member of a union, but I am a member of the Working America affiliate for non union workers so I was included.

I really wanted to see how strong the union guys came out at this, and I was not disappointed. It was an energized call to arms for all workers to engage in the fight to preserve the middle class and respect in the work place for all.  From President Trumka to the people calling in there was a clear recognition of the threat of the neo-cons right wing agenda.

One of the reasons I really wanted to listen to this, was to see if they were going to use the SB% enthusiasm to push back and gain ground that has been lost for workers over the past decades.  The answer to that was a definite yes.

Some commentators, including me, think that the decline in union influence has allowed the right wing to charge back.  Unions have focused on elections, as they should, but kind of lost ground as far as lobbying and influencing legislation between the cycles.  President Trumka said they are setting up committees and organizing ways to be involved on a constant basis, probably as at least a partially volunteer effort.  It was this approach in the 1950’s and 1960’s that allowed the unions to push for gains for the middle class.

He says they have also reformulated their approach to young people just entering the work place and are seeing more success with that group.

A lot of the questions were bread and butter issues about pensions and benefits, particularly from retirees.  But much of what the union folks and the callers said, recognized the real threat posed by the radical right against union members and workers in general.  One of the union officials, I think it was OAPSE’s Joe Ruvolo, said that there are no wage scales low for workers that is enough to satisfy the right wing.  They will just keep driving wages lower as long as they have the power to do it.  I believe this to be absolutely true.

The time to fight is now.   Solidarity!

Unions Stand for Alll Who Work

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