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The Ohio Constitutional Modernization Commission has ceased to exist, eff. 6/30/2017, but its work product is available for those who care about the future of the Ohio Constitution. The final reports of the Commission and its six subject-matter committees can be viewed on the Commission website (click here) and have been posted on the OCLH (OHIO CONSTITUTION LAW AND HISTORY) website along with selected research memoranda from each of the subject-matter committees. (click here)

On August 17, 2017, the Ohio Ballot Board prescribed the ballot language for the November 7, 2017, vote on a proposed initiated constitutional amendment to replace Article I, Sec. 10a of the Ohio Constitution, with a new provision designed to further strengthen the rights of victims in the criminal justice system. The proposal, which will be Issue 1 on the ballot, is the Ohio Crime Victims Bill of Rights, generally known as Marsy’s Law. If approved by the voters, this amendment will expand the right of crime victims to privacy and their right to be treated with respect, fairness and dignity; it will further provide that such rights are to be protected as vigorously as the rights of the accused. The Secretary of State had reviewed the signatures and concluded on July 17, 2017, that the petitioners had obtained more than the required 305,591 valid signatures needed to qualify the proposed amendment for the ballot. For a copy of the approved Ballot Language, click here. For the text of the proposed amendment and the summary that had been submitted to the Secretary of State before the beginning of signature-gathering, click here.

The Ohio Supreme Court ruled on July 26, 2017 that three provisions of a 2015 state law regulating the use of traffic cameras were unconstitutional. Justice Fischer wrote the majority opinion in Dayton v. State, holding that:

R.C. 4511.093(B)(1), which requires that a law-enforcement officer be present at the location of a traffic camera, infringes on the municipality’s legislative authority without serving an overriding state interest and is therefore unconstitutional. We also hold that R.C. 4511.0912, which prohibits the municipality from issuing a fine to a driver who is caught speeding by a traffic camera unless that driver’s speed exceeds the posted speed limit by 6 m.p.h. in a school or park zone or 10 m.p.h. in other areas, unconstitutionally limits the municipality’s legislative powers without serving an overriding state interest. Finally, we hold that R.C. 4511.095, which directs the municipality to perform a safety study and a public-information campaign prior to using a camera, unconstitutionally limits the municipality’s home-rule authority without serving an overriding state interest.”

Justice Fischer’s opinion was joined by Chief Justice O’Connor and Judge Baldwin of the Fifth District Court of Appeals, sitting for Justice O’Donnell. Justice French wrote a concurring opinion, joined by Justice Kennedy. Justice French found the state laws unconstitutional on the ground that they “fail to prescribe a rule of conduct upon citizens generally,” and thus violate the Home Rule Amendment (Art. XVIII, Sec. 3).

Under Article XVIII, Section 3 of the Ohio Constitution, municipalities have authority to exercise powers of local self-government. They also have authority to adopt and enforce police regulations, as long as those regulations do not conflict with state laws. The Court uses a three-part test to examine potential conflicts between local ordinances and state law. The local ordinance must yield to a state statute if “(1) the ordinance is an exercise of the police power, rather than of local self-government, (2) the statute is a general law, and (3) the ordinance is in conflict with the statute.”

Dayton permitted its police department to begin using traffic cameras in 2002. When the state law passed in 2015, Dayton challenged the provisions that conflicted with its existing local ordinances. The parties agreed that the state laws and local ordinances conflicted, and the Court determined that Dayton’s laws were an exercise of police power. Thus the remaining part of the test stated above, and the issue in this case, was whether the challenged provisions of the state law were general laws.

Justice Fischer and Justice French both used a four-part test from Canton v. State, a 2002 Ohio Supreme Court decision, to determine whether the challenged provisions were general laws. Under this test, to qualify as a general law, a statute must “(1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.” When this general-law test is not satisfied, then the statute is deemed an unconstitutional limitation on the municipality’s legislative home-rule authority.

The majority opinion focused on the third prong, and determined that the provision requiring the presence of an officer contradicted the purpose of using the cameras; that the speed-leeway provision acted as an increase in speed limit, violating the city’s legislative power; that the study and notice provision does not actually require use of the study and would not succeed in notifying all potential motorists. The concurring opinion focused on the fourth prong and noted that the challenged provisions do not apply to citizens’ conduct in driving, but rather places limitations on municipalities.

Justices DeWine and O’Neill wrote separate dissenting opinions, both challenging the validity of the Canton test and pointing out that the 2015 law promotes uniform application of traffic laws around the state. Justice DeWine wrote that the Canton test is applied unevenly and does not provide sufficient guidance for the legislature. Additionally, to determine whether a state legislative enactment is a general law, the reviewing court should instead examine whether the statute has statewide reach and whether it treats the objects of the law equally.

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.

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