Monday, May 22, 2006

Breaking: New Legal Challenge to TEL

From a Coalition for Ohio's Future press release:

A new legal challenge against the proposed tax and expenditure limitation
(TEL) amendment to the Ohio constitution was launched today by the Coalition for
Ohio's Future. It contends that TEL petition circulators did not list
petition management companies and other independent contractors as their
employers. It is based on a recent court decision in Franklin County. Ohio
law requires circulators to include employer information on all petitions used
in an initiative petition drive.

The protests will be filed later this week by the law firm of Bricker &
Eckler, newly retained to assist the Coalition with this challenge.
Initial protests will be filed with Boards of Elections in six counties,
Cuyahoga, Franklin, Summit, Hamilton, Montgomery and Stark. More counties will
be filed afterward.
Notwithstanding the fantasy I articulated earlier about Blackwell being stalked by a deligitimized but still animate TEL Amendment, the best solution would be knocking it off the ballot with a legal challenge. The best of the best would be a successful legal challenge and Taft using his line-item veto on BabyTEL.

The Coalition presser lays out the legal analysis:
On May 4, 2006, Judge David Cain with the Franklin County Court of Common
Pleas ruled that Ohio law requires paid circulators to accurately list the
person employing them on part-petitions for a statewide initiative petition. In
that case, a number of paid circulators listed the entity which funded the
petition drive (the American Cancer Society) as their employer. However,
petition management companies and other independent contractors actually
recruited, screened, hired, trained, and paid the circulators.

The Court concluded that since the circulators were actually hired by an
independent contractor, it was fraudulent not to list the independent contractor
as the employer on the challenged part-petitions. As a result, every
part-petition where the circulator listed the wrong employer was

I haven't read Judge Cain's opinion so I can't predict how likely the Ohio Supremes will be to uphold it, but certainly the Coalition is right that it applies with equal force to the TEL petitions:
"Following a review of this recent court decision, and re-examining the TEL
petitions, we found that they instructed circulators to list 'Citizens for Tax
Reform' as the employer on every petition and it appears that every circulator
did exactly that," said Johnston. "Our examination of the petitions shows
that a petition management company hired most, if not all, of the circulators
who submitted TEL part-petitions. As such, almost every single part-petition
submitted by Citizens for Tax Reform contains the exact same defect that was the
subject of the May 4th Franklin County case."

Unlike the earlier challenge, this one sounds likely to knock off so many signatures that the TEL camp couldn't make up the difference in the truncated time they have under statute. Full text of the press release should be coming soon to this page.