Feed on
Posts
Comments

The Ohio Constitutional Modernization Commission was terminated by the Ohio General Assembly on June 30, 2017. The Commission had been created in 2011 and was supposed to last for 10 years. The Commission’s purpose was a comprehensive review of the Ohio Constitution, which is the 10th longest in the country.

In a column for the Columbus Dispatch, published on July 9, 2017, Cleveland-Marshall College of Law Dean Emeritus and former Senior Policy Advisor of the Ohio Constitutional Modernization Commission, Steven Steinglass reflected on the Commission’s work and some topics left unfinished. Despite not being fully staffed until mid-2014, the Commission approved recommendations to repeal or amend 21 sections. The General Assembly must decide whether to present those proposals to voters for approval. Two amendments, involving apportionment and anti-monopoly, were put before voters in 2015 and were approved. The Commission recommended no changes to 39 sections.

According to Steinglass, there are still many more provisions that the Commission did not act on. For example, committee-approved proposals to reform grand jury proceedings; unconstitutional provisions such as barring same-sex marriage and placing term limits on members of Congress; obsolete provisions; detailed provisions that should be in statutes instead; and hot button issues such as congressional redistricting.

The Commission’s work record, including proceedings and reports are still available on its website, but will eventually be moved to the Ohio Legislative Service Commission website.

The full text of the column is available here.

The Ohio Constitutional Modernization Commission, created in 2011 by HB 188, was scheduled to wrap up in 2021. However, the Commission has been eliminated early by the recent budget bill, HB 49 passed on June 28, 2017. The final meeting of the Commission occurred on June 8, 2017, and the final reports of the Commission were published on its website on June 30, 2017. Commission documents will be transferred to the Legislative Service Commission. Click here for the full press release.

Cleveland-Marshall College of Law Dean Emeritus, and current Senior Policy Advisor of the Ohio Constitutional Modernization Commission, Steven Steinglass was recently quoted extensively in an article on Cleveland.com, published May 22, 2017. The article, New State, New Constitution is part of a series exploring the issues of potentially carving a new state out of Northern Ohio. The May 22nd article focuses on creating a new state constitution, mentioning several options for structuring the potential government. The article also briefly discusses the history of Ohio’s constitutions and the changes that were made over time. Steinglass emphasizes that any new constitution “should reflect the values and ideals of its citizens” and “be transparent and understandable.”

Steinglass suggests that many changes are possible. For example, the current Ohio Constitution contains several provisions that may be better to have in the statutes instead. Another possible change is establishing a unicameral legislature, or even a parliamentary system, rather than the bicameral legislature currently in place. Changes could also be made to the executive branch, such as making the secretary of state an appointed, rather than elected, position. According to Steinglass, there is an ongoing debate about that issue across the nation, since the secretary of state oversees elections.

Check out the rest of the series for an exploration of the pros and cons of creating a new state.

The Court Decisions page of the Ohio Constitution: Law and History guide has been updated with the final cases of 2016 that interpreted constitutional issues.

On December 22, 2016, the Ohio Supreme Court examined the constitutionality of state statutes requiring the mandatory transfer of juvenile offenders to adult courts, and ultimately ruled the statutes unconstitutional.

In State v. Aalim, the majority opinion, authored by Justice Lanzinger, held that mandatory transfer of a juvenile to adult court without providing for the protection of an amenability hearing by the juvenile court judge violates the juvenile offender’s right to due process under Article I, Section 16 of the Ohio Constitution. Ohio laws providing for discretionary transfer of juveniles, aged 14 or older, to common pleas courts remain constitutional, but the mandatory transfer provisions in R.C.2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) were ruled unconstitutional. The majority opinion stated that the Ohio Supreme Court has recognized that in some matters, the Ohio Constitution offers greater protections than the U.S. Constitution. Additionally, Ohio’s juvenile system was created by the state legislature to focus on individual assessment in determining the best interests of the child. Therefore, an amenability hearing by a juvenile court judge must be held before transfer to meet a higher standard of fundamental fairness required for due process for juveniles.

Justice Kennedy concurred in part and dissented in part. She agreed that discretionary-transfer statutes are constitutional, but disagreed that Ohio’s due process clause requires an amenability hearing before transferring a juvenile offender to adult court. Kennedy wrote that the majority went against the Court’s precedent by interpreting Ohio’s due process clause differently than the comparable federal clause. Kennedy also noted that Ohio’s mandatory-transfer procedure included steps that met standards of fundamental fairness, and amenability hearings should not be required. Kennedy wrote that the fundamental fairness requirements discussed by the majority are not statutorily required, and the transfer issue is a policy decision that should have been left to the legislature.

Justice French also dissented and wrote that the majority failed to offer compelling reasons to grant juvenile offenders greater protections under the Ohio Constitution compared to the U.S. Constitution. She found that the pre-transfer hearing available to juveniles who qualified for mandatory transfer was adequate due process protection. French also stated that the transfer of juveniles is a policy decision meant for the legislature.

The Ohio Supreme Court issued a 4-3 decision in State v. Mole, Slip Opinion No. 2016-Ohio-5124, on July 28, 2016. The issue before the Court was whether R.C. 2907.03(A)(13) violated the equal protection clause of the United States and Ohio constitutions. The felony sexual battery statute prohibited sexual conduct by a peace office with a minor when the officer is more than two years older than the minor.

The majority opinion, written by Chief Justice O’Connor, recognizes that the Equal Protection Clauses of the United States and Ohio Constitutions are “substantively equivalent” and require the same review (see Paragraph 14). O’Connor then goes on to examine the authority of a state supreme court to independently construe its own state’s constitution. Citing both Ohio Supreme Court and United States Supreme Court precedent, the opinion states that the Ohio Constitution is an independent document and that state courts may interpret their state constitutions as providing  greater rights and protections beyond what may be afforded by the federal constitution. O’Connor cites decisions where the Ohio Supreme Court moved away from federal interpretations and provided greater protections, and decisions where the Court held closely to the federal interpretations. The majority opinion states that the Ohio Supreme Court makes the final decisions on the meaning of the Ohio Constitution, and will construe broader individual rights when the Court deems it appropriate. Therefore, the Court determines that R.C. 2907.03(A)(13) violates the Equal Protection Clause of the Ohio Constitution and is unconstitutional, even if the federal clause may be interpreted differently (see Paragraphs 21-23).

To reach the decision that R.C. 2907.03(A)(13) violates the Equal Protection Clause of the Ohio Constitution, the majority opinion applies the rational-basis test and examines whether the provision regarding peace officers was rationally related to a legitimate state purpose. R.C. 2907.03 was intended to prohibit sexual conduct in situations where the offender is taking advantage of an authoritative relationship with the victim or the victim is part of a vulnerable population. The state argued that the rational basis for adding the peace officer provision, regardless of whether the officer was taking advantage of their professional status, was to hold peace officers to a higher standard to ensure integrity, maintain public trust, and protect minors (see Paragraph 45). The majority opinion notes that other provisions of the statute require an occupational relationship between the offender and the victim, such as teacher and student or mental health professional and patient. However, the section dealing with peace officers did not require an occupational relationship, and instead imposed strict liability based only on the offender’s occupational classification. The majority opinion then determines that using a person’s classification as a peace officer to impose different sexual conduct standards, even where the conduct at issue was not related to the offender’s occupation, is not rationally related to a legitimate state interest (see Paragraphs 68-70).

Justice Kennedy dissented, writing that the protections provided by the Ohio Equal Protection Clause and the federal clause are the same. Kennedy disagreed with the majority’s analysis of Ohio precedent and argued that the Court instead should have focused on the language and history of each clause. By viewing the protections under both clauses as the same, Kennedy determined that the statute would have survived rational-basis review (see Paragraphs 73-74). Justice French also dissented, writing that the majority opinion does not provide enough analysis explaining why Ohio’s clause should be interpreted more broadly than the federal clause, and that the statute was rationally related to legitimate state interests (see Paragraphs 110-118).

The most recent issue of the Ohio State Law Journal, volume 77, number 2 (2016) contains articles on state constitutional law, expanding on a 2015 symposium on the topic. The issue includes Constitutional Revision: Ohio Style, written by Steven H. Steinglass, Dean Emeritus and Professor Emeritus of Cleveland-Marshall College of Law, and current Senior Policy Advisor of the Ohio Constitutional Modernization Commission. This article focuses on the history of constitutional revision in Ohio, and specifically on expansion of the methods for making revisions.

Constitutional Revision: Ohio Style begins with the Northwest Ordinance and 1802 Ohio Constitution, and reviews the path to statehood along with changes in the methods of constitutional revision later adopted in Ohio’s current constitution. The article then examines changes resulting from the Progressive-Era Constitutional Convention of 1912, and changes over the last century including the use of initiatives and constitutional revision commissions.

The Ohio Supreme Court is hearing oral arguments in two cases Tuesday, July 12, 2016, and two cases Wednesday, July 13, 2016. Live streaming video is available at this link.

On July 12, in the death penalty appeal, State v. Spaulding, Case no. 2013-0536, the defendant raises a number of issues dealing with due process rights under both the United States Constitution and the Ohio Constitution. The issues include whether the defendant’s rights were violated when his two court appointed capital-certified counsel did not attend each proceeding in the case together.

On July 13, in another death penalty appeal, State v. Cepec, Case no. 2013-0915, the defendant argues that his constitutional rights were violated when he was denied the right to an attorney during an interrogation.

Summaries of the remaining issues in each case can be found at Court News Ohio’s Oral Argument Previews page.

On June 9, 2016, the Ohio Supreme Court issued its decision in In re A.G., Slip Opinion No. 2016-Ohio-3306. The case was on appeal from an Eighth District Court of Appeals decision holding that the juvenile court did not err by refusing to merge acts that would have merged in adult criminal court because criminal statutes do not apply to juvenile proceedings. The Supreme Court of Ohio reversed, holding that juveniles are entitled to the same constitutional double-jeopardy protections as adults under Article I, Section 10 of the Ohio Constitution. Additionally, the same double-jeopardy analysis conducted in adult proceedings must be applied to juvenile proceedings.

Image of broken chain links Ohio House Joint Resolution No. 8 was introduced on May 25, 2016. The resolution proposes to amend Article 1, Section 6 of the Ohio Constitution, to prohibit slavery or involuntary servitude from being used as a punishment for committing a crime. Currently, Section 6 of Article 1 states “There shall be no slavery in this state; nor involuntary servitude, unless for the punishment of crime.” The resolution proposes to remove the phrase “unless for the punishment of crime.” The resolution was introduced by Representatives Reece and Sykes, and if approved by three-fifths of the members of both the House and Senate, it will then be placed on the general election ballot in November for vote by Ohio citizens.

In Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn., the Ohio Supreme Court ruled that Article II, Section 28 of the Ohio Constitution, providing protection against retroactive laws, only applies to individuals and private corporations, not to local governments. The case arose out of funding reductions made by the Ohio Department of Education in 2005-2007 for the districts of Toledo, Dayton, and Cleveland. The districts filed suit in 2011 to recover the funds taken by the Department.

The Department argued that it was immune from liability under a 2009 state budget bill that specifically immunized the Department from claims made by school districts for the 2005-2007 funding reductions. The districts argued that the 2009 immunity provision was unconstitutionally retroactive.

The Court examined Ohio precedent that withheld protection from political subdivisions, and precedent from other states where similar laws were found to apply only to private individuals and corporations. The Court also stated that government bodies must be subject to alteration if change is deemed necessary. The majority opinion, issued on May 4, 2016 and written by Justice Kennedy, allows the state legislature to retroactively adjust local school funding.

Older Posts »