Supreme Court Sincerity


Author: Bill Brown
Article Published: 2011/04/23




In November 2010, the Franklin County, Ohio Court of Appeals overturned a trial court's decision that dismissed more than $30,000 in fines against a Columbus Bar for violations of the Smoke Free Work Place Act. The trial court concluded that authorities had singled out bars and restaurants for penalties while refusing to cite individual smokers who violated the ban. The Ohio attorney general appealed the decision to the Tenth Circuit Court of Appeals, which overturned the lower court and prompted the current appeal for jurisdiction by the Ohio Supreme Court.

The 10th Circuit Court of Appeals decision to overturn the lower court has essentially declared that government and the will of the people trumps all. Their unfortunate decision relegates property rights to a kind of constitutional ghetto where they can be routinely cited as necessary for the benefit of the owner, but only until the government decides they’re not, and even then only as a matter of convenience to promote the governments position as being superior to the owners.

This past week, the Ohio Supreme Court agreed to review that Appeals Court decision.

In 2006, the Ohio Supreme Court got it right with regard to property rights when they found in favor of the property owners in the Norwood v. Horney decision that prohibited the taking of private property for economic development in the city of Norwood. Now, in 2011, we’re about to find out if the court was sincere and meant what they said regarding the sanctity of property rights and the inability of the government to destroy those rights for reasons not decidedly for the benefit of public interests.

As part of that 2006 decision, the court, citing previous decisions stated clearly:

Believed to be derived fundamentally from a higher authority and natural law, property rights were so sacred [historically] that they could not be entrusted lightly to “the uncertain virtue of those who govern.” As such, property rights were believed to supersede constitutional principles. . . . “To be protected and secure in the possession of [one's] property is a right inalienable, a right which a written constitution may recognize or declare, but which existed independently of and before such recognition, and which no government can destroy.

The right of private property is an original and fundamental right, existing anterior to the formation of the government itself; the civil rights, privileges and immunities authorized by law, are derivative and mere incidents to the political institutions of the country, conferred with a view to the public welfare, and therefore trusts of civil power, to be exercised for the public benefit. . . . Government is the necessary burden imposed on man as the only means of securing the protection of his rights. And this protection as the primary and only legitimate purpose of civil government, is accomplished by
protecting man in his rights of personal security, personal liberty, and private property.” (emphasis added)
 
Derived from a higher authority and natural law. Property rights existed independently and BEFORE the Constitution.

Neither the government, nor the public have the authority to arbitrarily take, or rescind the rights of ownership for purposes other than those that are not absolutely indispensable to the public interest. Further, if before the implementation of the Smoke Free Work Place Act there had been no Smoke Free environments available in which to work or to patronize, that would be cause for such legislation to be implemented in the interest of the public.

But that’s not the case and it never was. The Smoke Free Work Place Act seeks the reverse of this by imposing a zero tolerance for smoking anywhere inside a business where the public (including employees) may at some point enter of their own free will. Such a zero tolerance policy is hardly an indispensable need to be fulfilled by trampling the rights of a minority of business owners that seek to cater to a like minded minority of patrons. Only a lack of choice should ever require government intervention into private business, and if or when such regulation is instituted, the government, in order to maintain the least restrictions on personal freedom as may be feasible, is bound to implement such regulation in the least intrusive way possible.

Protecting us from ourselves is not the duty of government.

This case isn't about smoking, or “smokers' rights”, and it isn't about a special exemption for an otherwise legal activity. This is about property rights. It is about voters and the Ohio Department of Health deciding a person's property is not his own, but belongs to the public who might be invited in, and who are free to decline such invitations at any time. It is about the Ohio Department of Health going beyond what the law allowed in terms of a deliberate persecution of smokers, simply because they choose to smoke. Where no coercion to enter exists, there is no reason for such restrictions.

How a business owner chooses to use their property is not a subject for “public debate” beyond adhering to preexisting zoning ordinances for example that would prohibit factories from being built in a residential neighborhood, or strip clubs opening next to an elementary school. “The public” is free to express their thoughts and opinion on any subject, including their preference for which business properties they wish to patronize. But that right to expressing your opinion most assuredly does not permit the use of force through legislative jujitsu via the initiated statute process, or employing an army of petition signature-gatherers of questionable character and monetary motivation, or harassing pedestrians on the street for signatures in approval of negating the rights of others whom you disagree with.

Yet that’s exactly what happened to business owners in Ohio. Their rights were negated through popular opinion via an initiated statute process manipulated by Smoking Ban sponsors, specifically for the benefit of corporate interests. Such Rent-Seeking legislation is highly profitable. Despite the chorus of complaints from independent business and property owners, rather than recognize this obvious fact, the Ohio legislature has maintained a spineless, politically correct, hands off approach to the Smoke Free Work Place Act in support of the cliched "people have spoken” mob mentality, rather than address the validity of any business owners claim of damage to their businesses caused by it’s implementation.

This is a gross disservice to both the affected business owners, seeking protection from the abuse caused by such legislative based marketing, and the Ohio Constitution, which takes great pains to emphasize the importance of individual property rights.
Under ‘The people have spoken” reasoning, any violation of property rights is constitutionally sound, so long as there is room for the public to express its opinion regardless of the lack of any constitutional merit.

The people spoke about alcohol prohibition too until they realized what a disaster it was, because controlling people must and will always end in failure. America is a constitutional republic (though hardly recognizable today), and this means that RIGHTS, as protections from government abuses, have primacy over any popular opinion. The people can speak, or shout at the top of their lungs if they wish, and the majority of them can even agree, but this is a RIGHTS issue (specifically Property Rights in this instance) and that trumps any popular opinion regarding a mob-rule democracy.

There is no reason to believe that those businesses which have survived, or actually performed better without smoking, would not choose to continue on as non-smoking if the court should overturn the smoking ban. If business has improved, why would they once again allow it? On the other hand, those businesses that have suffered because they can no longer provide what the majority of their pre-existing patrons sought, could still be saved if they can once again offer the missing components of their trade, which are the benchmarks to be met that drive their industry: HOSPITALITY and ACCOMMODATION.

Even if the smoking ban survives this court challenge, how can enforcement be carried out given Gov. Kasich’s $55.5 billion, two-year budget proposal?  The proposal cuts the revenue for enforcement and operation of the Ohio's state Quit Line from $6 million this year to $1 million in 2012, and no resources are allocated at all for 2013. It is an unfunded mandate that continues to be a losing proposition.

The state has so far failed to collect even 25% of the fines levied against the more than $4 million spent to date in enforcement of the ordinance. The Department of Health is already looking for alternative funding for the Quit Line and enforcement beyond the $1 million in federal stimulus dollars for the Quit Line’s operation through Jan. 1. If the anti-tobacco advocates continue to use their standard play-book, (and they are nothing if not predictable in their mean spirited deliberateness of purpose), watch for a proposal to increase the state cigarette tax again, so that smokers can continue to provide employment for these petty tyrants, and to pay for the continued persecution of smokers to be administered by those who claim to care so very much about them.

The Ohio Supreme Court has an opportunity here to support and rightly defend the property rights that are the cornerstone of all that this country is built upon.

If the court was sincere in 2006, then there is hope. But, if like much of our government, they have succumbed to the politically correct illness of pandering to popular opinion and choose to uphold the Appeals Court decision, then as a state, and as a nation, WE'RE SCREWED.

Bill Brown blogs at "An Inconvenient Liberty"




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