Ohio Constitution News

December in even-numbered years is a busy time for the Ohio Supreme Court as it rushes to decide argued cases before the biennial change in the membership of the court, and December 2022 was no exception. In December, the court decided 20 cases that directly or indirectly involved  the Ohio Constitution.  These and other state constitutional cases decided during 2022 are listed on the Ohio Constitution: Law and History website under the Court Decisions menu. In addition, the menu contains the Pipeline (January 1, 2023), which lists cases with state constitutional issues that the court will be reviewing.

The December decisions included the following cases, which are described more fully on the website:

• Recalibrating the use of Chevron deference and stating that judicial deference to administrative agencies is permissive rather than mandatory and may occur only when a statutory term is ambiguous (TWISM Enterprises, v. State Board of Registration for Professional Engineers and Surveyors);
• Holding that motorist with automobile leases who had paid fines and not disputed the applicability of the city’s automated-traffic-enforcement ordinance were barred by res judicata from raising subsequent unjust-enrichment claims against the city (Lycan v. City of Cleveland);
• Holding the state cap on non-economic damages unconstitutional as applied under the state “due course of law” provision in Art. I, sec. 16, to a young girl who been raped repeatedly even though the court had earlier upheld the facial validity of the cap (Brandt v. Pompa);
• Holding that sentencing a juvenile to life in prison with the possibility of parole constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Ohio Constitution, where the defendant was convicted as a juvenile and the trial court failed to consider his youth as a mitigating factor in sentencing (State v. Morris);
• Holding that a statute requiring continuation of Tier I sex offender classification for a juvenile at a completion-of-disposition hearing and not allowing the juvenile court to exercise discretion to make its own determination as to whether the continuation of Tier I offender status into adulthood was necessary or warranted was fundamentally unfair in violation of due process as applied to the juvenile; noting that “[d]ue process rights are applicable to juveniles through the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution” (In re D.R.);
• Holding that the trial court was required to provide the defendant, who had been charged with abduction, with a bill of particulars to advise the defendant of “the right to know the nature of the accusation being made by the state;“ under  I, sec.10, and pointing out that with the advent of short-form indictments, bills of particulars became necessary in some cases to give the accused specifics as to what conduct the state was alleging constituted the offense, so that the accused could mount a defense.” And rejecting the argument that there is an exception to the requirement of a bill of particulars when there is full discovery, “since discovery and the bill of particulars serve different purposes.” (State v. Haynes);
• Deciding three cases construing Marsy’s Law, Art. I, sec. 10a, which deals with the rights of victims of crimes (State v. Brasher; State v. Fisk; State v. Yerkey).

The Court Decisions involving Ohio constitutional issues has been updated to include the balance of cases through the end of October 2022. In addition, the Pipeline has been updated, effective November 1, 2022, to reflect cases pending before the Ohio Supreme Court that involve issues under the Ohio Constitution.

Ohio courts are not bound by the case or controversy requirements of Article III of the U.S. Constitution in determining whether cases in the Ohio courts are justiciable, but they are free to look to federal principles in developing state justiciability requirements, including the ripeness requirement.

Under the Reagan Tokes Law, O.R.C. 2967.271, which became effective on March 22, 2019, the state established indefinite-sentencing provisions for people convicted of non-life-sentence felony offenses of the first or second degree. As described by the Ohio Supreme Court, under this statute “there is a presumption that the offender will be released on the expiration of his or her minimum prison term or earned early-release date, but the statute enables [the Ohio Department of Rehabilitation and Correction] to rebut the presumption and keep the offender incarcerated up to the expiration of his or her maximum prison term.”

In this case, the defendant claimed that O.R.C. 2926.271 violates the separation-of-powers requirement of the Ohio Constitution and his rights to a trial by jury and due process of law under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and their parallel Ohio provisions.

Numerous Ohio prisoners had challenged the constitutionality of this provision, and lower Ohio courts were split on whether challenges could be made on direct appeal at the time of the initial sentencing or whether the ripeness doctrine required a prisoner to wait until the administrative application of an extension, which could then be challenged in a habeas corpus proceeding.

On March 16, 2021, the Ohio Supreme Court in State v. Maddox, ____ Ohio St.3d ____ , 2022-Ohio-764, 2022 WL 790470, ____ N.E.3d ____ (2022), held in a 4-3 decision that a criminal defendant’s challenge to the constitutionality of the Reagan Tokes Law was ripe for review in the defendant’s direct appeal of his conviction and prison sentence. None of the Ohio justices addressed the merits of the defendant’s claim, and only one of the three dissenting justices discussed the “merits” of the ripeness issue.  The two other dissenting justices questioned whether there was a split in the district courts of appeals, as well as whether this case was a proper vehicle for addressing the ripeness issue.

In framing the issue, the court relied primarily on Ohio cases that addressed the relevance of ripeness in determining whether a controversy was justiciable.

In order to be justiciable a controversy must be ripe for review.” Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26; see also Pack v. Cleveland, 1 Ohio St.3d 129, 438 N.E.2d 434 (1982), paragraph one of the syllabus. Article IV, Section 4(B) of the Ohio Constitution provides that “[t]he courts of common pleas * * * shall have original jurisdiction over all justiciable matters * * * as provided by law,” and this court has stated that “it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect.” Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). “ ‘The basic principle of ripeness may be derived from the conclusion that “judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.” ’ ” State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 694 N.E.2d 459 (1988), quoting Comment, Mootness and Ripeness: The Postman Always Rings Twice, 65 Colum. L. Rev. 867, 876 (1965), quoting Davis, Ripeness of Governmental Action for Judicial Review, 68 Harv. L. Rev. 1122, 1122 (1955).

The court also looked to federal court decisions on ripeness for guidance, and the court further held that the prudential concerns of ripeness did not prevent the issue from being addressed on direct appeal.

Ripeness is distinct from standing, but both doctrines require that “an injury in fact be certainly impending.” Natl. Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). “[I]f a threatened injury is sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness doctrine will necessarily be satisfied.” Id. at 1428. Then, “only the prudential justiciability concerns of ripeness can act to bar consideration of the claim.” Id. The prudential-justiciability concerns include (1) whether the claim is fit for judicial decision and (2) whether withholding court consideration will cause hardship to the parties.

Because the defendant had been sentenced under O.R.C. 2967.271, the court concluded that no further factual development was necessary to analyze the challenge. And it further concluded that a delay in reviewing the issue would result in duplicative litigation, would force the defendant (and others appealing their sentences) to endure potential violations of their constitutional rights while waiting to see whether they are denied release at the expiration of their minimum prison terms.

Unlike the Eighth Amendment to the U.S. Constitution, which provides, in part, that “excessive bail shall not be required,” Article I, sec, 9, of the Ohio Constitution provides not only that “[e]xcessive bail shall not be required” but also that there is an affirmative or positive (but qualified) right to bail: “A person shall be bailable by sufficient sureties . . . .”

The right to bail in the Ohio Constitution can be traced to the Northwest Ordinance of 1787, which provided an affirmative right to bail as well as an exception in capital cases. See Northwest Ordinance, Sec. 14, art. 1I (“All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great.”). In slightly different language, the 1802 Constitution in Art. VIII, sec. 12, guaranteed the right to bail in non-capital cases, See 1802 Const., Art. VIII, sec. 12 (“That all persons shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great . . . .”).  In addition, the 1802 Constitution in another provision provided that “[e]xcessive bail shall not be required . . . .” 1802 Const., Art. VIII, sec. 13.

In 1997, the voters approved an amendment that permitted the denial of bail in non-capital felony cases where the defendant posed “a substantial risk of serious physical harm to any person or to the community.”  The 1997 amendment required the General Assembly to fix standards for making this determination, but it delegated to the Ohio Supreme Court authority to establish procedures “for establishing the amount and conditions of bail.”

Article I, sec. 9, of the current Ohio Constitution, which also includes a ban on the infliction of cruel and unusual punishment and the imposition of excessive fines, provides in its entirety as follows:

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

 

The General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(B) of the Constitution of the state of Ohio.

 

In 2005, the Ohio Supreme Court, relying on the text of this section, its history, and the purpose of the 1997 amendment, held that a cash-only bail bond is unconstitutional. Smith v. Leis , 106 Ohio St.3d 309, 857 N.E.2d 138 (2005). And, in 2014, the court held that this section is violated when a court requires that 10 percent of the bail be paid in cash and prohibits a defendant from posting a surety bond for the full amount. State ex rel. Sylvester v. Neal, 140 Ohio St.3d 47, 14 N.E.3d 1024 (2014).

In its most recent decision addressing this section, the Ohio Supreme Court in DuBose v. McGuffey, ____ Ohio St.3d ____ , 2022 WL 34730, 2022-Ohio-8, ____ N.E.3d ____ (Jan. 4, 2022), held in a 4-3 decision that the “sole purpose of bail is to ensure a person’s attendance in court” and held that an appellate court acted properly in applying a de novo, rather than an abuse of discretion, standard in reviewing a trial court’s setting of bail. The court also held that the safety concerns of a victim’s family were not proper considerations with respect to the financial conditions of bail because “public safety is not a consideration with respect to the financial conditions of bail” (emphasis in original) and that a $1.5 million bail was constitutionally excessive under Art. I, sec. 9, because “the serious nature of the charges did not outweigh [the defendant’s] lack of financial resources.” Finally, the court pointed out that this section of the Ohio Constitution permitted the adoption of a statute, see R.C. 2937.222, for an order of detention without bail, which, when properly relied upon, could justify the denial of bail in cases where a defendant is a danger to any person or to the community, and it further noted that the 1997 amendment delegated to the Ohio Supreme Court the power to adopt “[p]rocedures for establishing the amount and conditions of bail . . . .”

Ohio Constitution Network has been updated, and the Court Decisions from 2021 now includes 15 decisions of the Ohio Supreme Court in which the court addressed directly or indirectly issues concerning the Ohio Constitution.  See the Court Decisions menu on the Ohio Constitutional Law and History website.