Ohio Supreme Court: Lawmakers can use tobacco fund for other purposes

Health advocates won and health advocates lost Wednesday as the Ohio Supreme Court unanimously ruled that funds set aside a decade ago exclusively for smoking prevention efforts remained state money that could later be diverted to other purposes.

“The question whether it is wise to enact legislation is not the same question as whether the legislation is constitutional,” wrote Justice Paul Pfeifer, noting that briefs had been filed from interests in the case arguing that the money would be better spent for its original purpose.

The Ohio Supreme Court ruled that Ohio's general assembly had 'plenary legislative power' to divert tobacco funds.

The Ohio Supreme Court ruled that Ohio's general assembly had 'plenary legislative power' to divert tobacco funds.

“None of those arguments concerns a court of law,” he wrote. “The General Assembly has plenary legislative power. In the exercise of that power, the General Assembly evaluated Ohio’s budget priorities and enacted (Senate Bill) 192 and (House Bill) 544. It is not for us to judge the wisdom of the General Assembly but to determine whether the exercise of its power comports with or violates the Ohio Constitution.”

The court found that the laws, which ultimately dismantled the Ohio Tobacco Prevention Foundation and confiscated its financial endowment, were constitutional.

The court agreed with a decision by the 10th District Court of Appeals, which had overturned a ruling in Franklin County Common Pleas Court. The lower court had found that lawmakers created an irrevocable trust when it created the anti-smoking foundation that even they could not now break.

The decision ends a three-year war over $264 million, part of Ohio’s share of a multi-billion-dollar national settlement with major tobacco companies. The Democratic Gov. Ted Strickland and the Republican-controlled General Assembly at the time initially tried to take a large share of the foundation’s funds to help pay for a $1.57 billion job-creation package.

The foundation’s board, however, balked at the plan and tried to give away most of its endowment to a Washington-based organization, the American Legacy Foundation, which has a similar smoking prevention and treatment mission.

That prompted the governor and lawmakers to enact legislation to dismantle what they characterized as a rogue state agency and confiscate its funds, an endowment that has only grown while it sat largely untouched in the Ohio Treasury as the court fight waged on.

The money’s purpose was eventually shifted in the current budget away from the original jobs package to funding health-care programs and county child and adult protection services, a move that ultimately pit some health-care advocates who were to receive some of the money against other advocates who wanted it spent on its original anti-smoking mission.

If the decision had gone the other way, it could have blown a major hole in the state’s current $50.5 billion, two-year budget, which to date has remained in the black.

Robert G. Miller, Jr., of Waterville, who had been a beneficiary of one of the smoking-cessation programs funded by the foundation, was one of the plaintiffs in the case.

source: toledoblade.com

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