Ohio Elections Panel Dismisses Complaint Against Zoo Levy Mailer

Ohio Elections Commission

Opponents of Franklin County Issue 6, a permanent levy doubling the property taxes county residents pay to support the Columbus Zoo, successfully defended a campaign mailer against an Ohio Elections Commission (OEC) complaint this week.

Lawyer Marion Little and plaintiff Phillip Pikelny
Lawyer Marion Little and plaintiff Phillip Pikelny

Marion Little, a local attorney specializing in defending large businesses and government entities against lawsuits, represented Columbus Dispatch executive and Columbus Zoological Park Association chairman Phillip Pikelny in his complaint against Americans for Prosperity – Ohio (AFP Ohio).

Under a state law being reviewed by the U.S. Supreme Court, Pikelny filed an OEC complaint against the group on April 25, alleging that a recent anti-levy mailer contained lies for which AFP Ohio should be penalized.

In his opening statement, Little sneered at the defendants as “our friends from out of town,” claiming that AFP “turned a blind eye, once again, to the truth” and intentionally sought to “mislead the voters” with the mailer asserting that Issue 6 would increase property taxes by 105 percent.

AFP Ohio attorney Mark Weaver — a former Ohio deputy attorney general, former U.S. Department of Justice spokesman, and current partner at Isaac, Wiles, Burkholder & Teetor — replied, “we are not ‘friends from out of town,’ everyone here is from Franklin County.”

Weaver argued that based on prior OEC rulings, the commission could find no probable cause for a violation because of the established concept of “innocent construction,” which calls for regulators to assume good faith when deciding how an election statement should be interpreted.

Little and Pikelny argued that the mailer intentionally misled voters into believing that overall Franklin County property taxes would increase by 105 percent, prompting Weaver to wonder aloud how they missed the “giant letters” on the mailer referencing the zoo levy in particular.

“Little’s writing his own ads,” Weaver joked.

Weaver insisted that the Ohio Tenth District Court of Appeals 2004 ruling in Service Employees International Union District 1199 v. Ohio Elections Commission required OEC to dismiss Pikelny’s complaint.

He asked the commission, “When’s the last time you saw a case with the same set of facts, and a court above you telling you what to do?”

During deliberations, Lynn Grimshaw, a political independent, said that Weaver’s explanation of SEIU v. OEC convinced him.

Adding that he was having difficulty seeing anything that distinguished the two cases from one another, Grimshaw voted to find no probable cause of a campaign law violation and to dismiss the complaint “rather than waste more time.”

Grimshaw’s motion passed 2-1, sending Pikelny away empty-handed.

AFP Ohio director Eli Miller said that he felt his group’s victory in the quasi-judicial hearing was ultimately a win for everyone.

“This decision is absolutely a win for Franklin County residents because it allows them to learn more from both sides of this issue and make an educated decision on May 6,” Miller told Media Trackers. “Some Franklin County residents have definitely felt that their voice was being silenced for opposing this proposed tax hike.”

“That is what prompted us to get involved and attempt to make sure their perspective was heard,” he noted.

Miller added that “as with any tax increase or proposed tax increase, those who can least afford it are affected the most. In this case, those who can least afford it are probably also the least likely to visit the zoo and experience what their additional tax dollars are paying for.”

NBC 4 in Columbus reported on April 29 that a SurveyUSA poll found Franklin County voters oppose the zoo tax hike 56 percent to 36 percent.