Today Franklin County Common Pleas Judge David Fais issued a ruling preventing the Governor from using $250 million in anti-Tobacco funds to help balance his mess of a budget. New 3BP contributor Clever Alias, Esq. was nice enough to provide us with an analysis of the why’s and what now’s.
“I’ll say this, Fais took his time on this ruling for one reason: to make it very difficult to overturn on appeal.
His Order provides three strong reasons why the State of Ohio can no longer count on that money for its budget.
1. The law that ordered the liquidation of the fund was retroactive. Retroactive bills are prohibited by the Ohio Constitution. See, Ohio Const. Atricle II, § 28. (This is clearly the strongest part of his decision).
2. The legislature created an irrevocable chartitable trust when it created the Tobacco Endowment fund to benefit smokers trying to quit. Irrevocable means, funny enough, irrevocable.
3. The Court discusses that Ohio might be allowed to violate the contracts clause and take all the money if it could prove it was serving an important state interest. Fais details why this money isn’t that important (Federal stimulus, bond packages, etc.).
After Gov. Ted appeals, I think the 10th District will ultimately be hard pressed to reverse this. It’s possible that they could work their way around the third and maybe the second issues. However, the first will be much harder to get around on appeal.
Even if the 10th District reverses, the conservative Ohio Supreme Court might take an appeal on this one and reinstate Fais’s order.
Anyone have $250 million we could borrow?