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In the Supreme Court of Ohio IN THE SUPREME COURT OF OHIO BOARD OF TRIJSI'EES OF THE Case No. 2010-0118 TOBACCO USE PREVENI'ION AND CONTROL FOUNDATION, et al., On Appeal from the Franklin Cowity Cow-t of Appeals, Plaintiffs-Appellants, Tentli Appellate District V. Court of Appeals KEVIN L. BOYCE, Case Nos. 09AP-768, 09AP-785 TREASURER OF STATE, et al., 09AP-832 Defendants-Appellees. ROBERT G. MILLER, JR., et al., Plaintiffs-Appellants, On Appeal from the Franklin County Court of Appeals, V. Tenth Appellate District STATE OF OHIO, et al., Court of Appeals Case Nos. 09AP-769, 09AP-786 Defendants-Appellees. 09AP-833 MERIT BRIEF OF PLAINTIFFS-APPELLANTS ROBERT G. MILLER, JR., DAVID W. WEINMANN, AND AMERICAN LEGACY FOUNDATION John W. Zeiger (0010707) Counsel of Recoyd Richard Cordray (0038034) Stuart G. Parsell (0063510) Attorney General of Ohio ZEIGER,1'IGGES & LITTLE LLP Alexandra T. Schininier(0075732) 41 South High Street, Suite 3500 Chief Deputy Solicitor General Columbas, Ohio 43215 Richard N. Coglianese (0066830) (614) 365-9900 Michael J. Schuler (0082390) Facsimile: (614) 365-7900 Assistant Attorneys General [email protected] 30 East Broad Street, 16n' Floor parsell@]itohio.com Columbus, Ohio 43215 (614) 466-8980 Counsel for Plaintiffs-Appellants Robert G. Miller, Jr., David W. Weinmann, Counsel for Defendants-Appellees and American Legacy Foundation Ttie State of Qhio and Attorney General Katherine J. Bockbrader (0066472) Damian Sikora (0075224) Assistant Attorney General Assistant Attorneys General Health & Hunian Services Section Constitutional Offices 30 East Broad Street, 26"' Floor 30 East Broad Street, 16a Floor Columbus, Ohio 43215-3428 Columbus, Ohio 43215-3400 (614) 466-8600 (614) 466-2872 Counsel for Defendants-Appellees Counsel for Defendant-Appellee The Ohio Department of Health and its Ohio Treasurer of State Director Alvin D. Jackson Steven McGatm (0075476) Assistant Attorney General Court of Claims Section 150 East Gay Street, 23"d Floor Columbus, Ohio 43215 (614) 723-5470 Counsel for Plaintiff Boai-d of Trustees of Thc 'I'obaceo Use Prevention and Control Foundation TABLE OF CONTENTS Paee TABLE OF AUTHORITIES .......................................................... ............................................ iii INTRODLICTION .......................................................................................................................I STATEMENT OF FACTS ..........................................................................................................5 A. The I-Iistory Of The Ohio 1'obacco Use Prevention And Control Endowment Fund ....................................................................................5 B. The State's 2008 Plan To Divert The Endowment `I'rust Coipus To Purposes Um•elated To Tobacco Prevention ......................................8 C. 'I'he Court Proceedings Below .............................................................................10 ARGUMENT ...............................................................................................................................13 Proposition of Law No. I: The Retroactivity Clause of the Ohio Constitution, Article 11, § 28, prohibits the General Assembly from divesting the equitable trust estate of, and depleting the previously disbursed monies held in, the Endowment Trust, which the General Assembly specifically established and funded in 2000 as a permanent trust outside the state treasury for lifesaving tobacco prevention and cessation programs ..............................................................................................13 A. The Endowment'1'rust Monies Are Not The State's Funds .................................13 B. "I'he Retroactivity Clause Probibits The General Assembly From Raiding 7'he Pre-Existing Monies In The Endowment 1'rust That Is Outside The State "I'reasury ..............................................................................18 l. The Endowment Fund Is A'1'rust .............................................................20 2. The Endowment Fund Is A Vested Trust Estate ......................................23 C. 'fhc Endowment Trust Was Specifically Structured Just Like The State Retirement System Trust Funds And Is Entitled To The Same Constitutional Protections Those Trusts Enjoy .............................29 Proposition of Law No. II: House Bill 544's purported liquidation and depletion of the Endowment Trust violates the Contracts Clauses of the United States Constitution, Article 1, § 10, and the Ohio Constitution, Article II, § 28, by substantially impairing pre-existing trust rights and obligations...........................................................................................................31 Proposition of Law No. III: The State cantiot take advantage of its own misconduct by wrongfully setting up the very open meetings infractions that the State now claims invalidate the contract the Tobacco tJse Prevention and Control Foundation entered into with American Legacy Foundation for the continuation of tobacco prevention and cessation programs in Ohio .................................................................................34 CONCLIJ SI ON ............................................................................................................................3 9 CERTIFICATE OF SBRVICF . .. ..................................................................................................41 APPENDIX APX. PAGE Notice of Appeal of'Plaintiffs-Appellants Robert G. Miller, Jr., David W. Weinmann and American Legacy Foundation ...................................................Apx. 1 Franklin County Court of Appeals' .ludgmcnt Entry, filed Deceniber 31, 2009 .....................................................................................................Apx. 5 Franklin County Court of Appeals' Nune Pro Tunc Judgment Fntry, filed January 5, 2010 ...........................................................................................................Apx. 8 Franklin County Court of Appeals' Decision, filed Deceinber 31, 2009 ...........................Apx. I l Franklin County Comrnon Pleas Court's Final Judgment Entry, filed August 11, 2009 ..........................................................................................................Apx. 48 Franklin County Common Pleas Court's Order Granting Preliininary Injunction, filed February 10, 2009 ................................................................Apx. 65 Ohio Constitution, Article II, § 28 ......................................................................................Apx. 125 United States Constitution, Article I, § 10 ..........................................................................Apx. 126 Amended Substitute Senate Bill No. 192 (123rd General Assembly) ................................Apx. 127 Substitute House Bill No. 544 (127th General Assembly) .................................................Apx. 147 TABLE OF AUTfIORITIES CASES PAGE Association of Surrogates and Supreme Courl Reporters v. State of New York (2d Cir. 1991), 940 F.2d 766 .....................................................................32 Barber v. Ritter (Col. 2008), 196 P.3d 238 ..................................................................................28 Braain v. Central Trust Co. (1952), 92 Ohio App. 110 ................................................................24 Brown v. Buyer's Cor•p. (1973), 35 Ohio St. 2d 191 ...................................................................23, 24 C'incinnati v. Seasongood (1889), 46 Ohio St. 296 ......................................................................19, 24 Cobell v. Vorton (D.C. Cir. 2001), 240 F.3d 1081 ......................................................................25 Dadisman v. Moore (W. Va. 1989), 384 S.E.2d 816 ...................................................................21, 29, 32 Danziger v. Luse (2004), 103 Ohio St. 3d 337 ............................................................................25 Eden Really Co. v. Weather-Seal Inc. (1957), 102 Ohio App. 219 .............................................37 PirstNat'1 BankofCincinnati v. Tenney (1956), 165 Ohio St. 513 ............................................24 Hermann v. Brighton German Bank Co. (1914), 29 Ohio Dec. 626 ...........................................24 In re Tord (1982), 3 Ohio App. 3d 416 .......................................................................................15, 29 In re Guardianship of Lombardo (1999), 86 Ohio St. 3d 600 .....................................................24 Kapiolani ParkPreservation Society v. City ofHonolulu (Haw. 1988), 751 P.2d 1022 ........................................................................................................32, 33 Lemieux v. Kountz (1923), 107 Ohio St. 84 .................................................................................14 New Gloucester School Fund v. Bradbury (1834), 11 Me. 118 ..................................................33 Ohio Society for Crippled Children and Adults, Inc. v. McElroy ( 1963), 175 Ohio St. 49 ............................................................................................................................22 Rockfield v. First Nat'l Bank of Springfield (1907), 77 Ohio St. 311........ ..................................22 Smith v. Smith (2006), 109 Ohio St. 3d 285 .................................................................................18 South Carolina Dep't of Mental Healtla v. McNlaster (S. Car. 2007), 642 S.1;.2d 552
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