Youngstown’s tax on prison is unconstitutional, CCA says

By Peter H. Milliken

‘The fee serves no legitimate public purpose,’ the private prison’s lawsuit says.

YOUNGSTOWN — Corrections Corp. of America, which operates the Northeast Ohio Correctional Center on Hubbard Road, has sued the city, saying the city’s recently enacted $1 per-prisoner per-day tax on private prisons violates the U.S. and Ohio constitutions and the city charter.

A deputy city law director, however, said the prisoner accommodation tax ordinance city council passed last year is valid.

The Nashville-based CCA filed the lawsuit Friday in Mahoning County Common Pleas Court, where the case is assigned to Judge R. Scott Krichbaum. No court hearing has been scheduled.

The new tax, which took effect Dec. 1, “discriminates against interstate commerce” in violation of the commerce clause of the U.S. Constitution, the lawsuit said.

Because all inmates at NOCC are prisoners or detainees of the U.S. Bureau of Prisons or the U.S. Marshal’s Service, and CCA is acting as “an instrumentality of the federal government,” the fee also violates the intergovernmental tax immunity doctrine in the supremacy clause of the Constitution, the suit says.

The tax violates the equal-protection clauses of the U.S. and Ohio constitutions because “the fee serves no legitimate public purpose, and there is no rational basis for the discrimination between CCA and any other entity housing prisoners within the city,” the suit says.

The tax also violates the city charter because council improperly enacted it as an emergency measure and “because it is an occupational tax, which has not been submitted to the electorate,” the corporation’s complaint says.

The lawsuit, filed on behalf of the corporation by Atty. Timothy J. Bojanowski of Phoenix, asks the court to declare the tax unconstitutional and void it, prohibit the city from collecting it, and bar the city from punishing the corporation for not paying it.

Last month, CCA sent the city a letter saying the corporation objected to the tax and wasn’t going to pay it, the lawsuit says.

“This is entirely within our rights as a city to do this. It does not violate the interstate commerce clause. ... There is no intent to penalize interstate commerce,” said Anthony Farris, deputy city law director.

The ordinance was projected to generate slightly more than $500,000 annually for the city’s general fund, which pays the city’s general expenses, including those of police and fire protection, Farris said.

“We believe we are entitled to these proceeds,” Farris said, adding that the city hasn’t yet received any revenue under this ordinance.

In June 2009, council passed an emergency ordinance imposing the tax for prisoners convicted of crimes occurring outside Mahoning County, after the city unsuccessfully tried to negotiate such a payment from CCA, Farris said.

In response to the corporation’s objections, council amended the ordinance in November to encompass all convicted prisoners housed within the city by a private institution regardless of where their crimes occurred, Farris said.

“We analyzed it again, and we wanted to make sure we were absolutely correct so that we would prevail in this litigation should it occur. ... We wanted to make sure that we were absolutely 100 percent right, which we are,” Farris explained.

“Their business brings prisoners — criminals — into the area. That’s something that has to be addressed by all aspects of government. There are law-enforcement issues with that. One has to maintain a state of readiness when you have a large amount of criminals in your area, and we feel that that justifies this fee,” Farris concluded.

milliken@vindy.com