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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.

The website has been updated to include the 2022 decisions of the Ohio Supreme Court involving the Ohio Constitution, including the 2022 redistricting cases.  The cases include links to the decision and to the court’s docket. In addition, a new feature, a Pipeline Chart, is now included on the website. The chart, which includes links to the court’s docket, lists the cases pending before the Ohio Supreme Court that involve issues under the Ohio Constitution. The plan is to update the Pipeline Chart periodically, probably monthly.

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 . . . .”

The Ohio State Bar Association is sponsoring its fourth annual program on The Importance of the Ohio Constitution: Who Decides? Constitutional Rights in Criminal and Civil Cases. The seminar is scheduled for the afternoon of Monday, April 4, 2022, at the Ohio State Bar Association, 1700 Lake Shore Drive, Columbus 43204.

 

This year’s program focuses on state constitutional developments in the civil and criminal area. The speakers include three justices of the Ohio Supreme Court (Chief Justice Maureen O’Connor and Justices Mike Donnelly and Melody Stewart), Sixth Circuit Chief Judge Jeffrey Sutton, the State Solicitor, and several other prominent lawyers. The course planner for this program is Steven H. Steinglass, Dean Emeritus and Professor Emeritus at the Cleveland-Marshall College of Law at Cleveland State University,

 

This seminar will also be available to attendees as a live interactive webinar for those who wish to view the program remotely. And law students may attend the program remotely or in-person without charge.

According to the most recently issued edition of Book of the States, the number of words in the Ohio Constitution has increased to 59,858, and Ohio now has the ninth longest state constitution in the nation. See General Information on State Constitutions, Book of the States, 2021 (Table 1.3). [General Information on State Constitutions] The Ohio Constitution is also almost eight times longer than the U.S. Constitution.

 

Ohio currently operates under the 1851 Ohio Constitution, which the voters have amended 170 times. Since the adoption of the constitution in 1851, the number of Articles has grown from sixteen to nineteen, and the number of sections has increased from 169 to more than 225. The Ohio Constitution jumped to almost 60,000 words on January 1, 2021, when the revised Article XI (state apportionment) and the new Article XIX (congressional redistricting) became effective.

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.

OCN Is Back

After a period of hiatus, Ohio Constitution News (OCN) is back, and new items will be posted periodically.

 

Ohio Constitution News is a blog that tracks developments relating to the Ohio Constitution, including Ohio Supreme Court cases, ballot initiatives, state legislation, lectures, and seminars. The blog also reports on new material added to the Ohio Constitutional Law and History website. Developed by Dean Emeritus/Professor Emeritus Steven H. Steinglass and maintained by the Cleveland-Marshall College of Law Library, OCN and the website are not affiliated with the Ohio Supreme Court or with the State of Ohio.

 

During the period OCN was down, the website added a number of new items, including (1) the updating and improvement of the Table of Proposed Amendments and the statistical tables; (2) summaries of the Ohio Supreme Court’s leading state constitutional law decisions since 2018; and (3) the posting of selected Ohio Constitutional Modernization Commission research and other documents that were not included in the final reports of the OCMC and that had not been widely made available.

 

How to Sign Up

Those who want to keep abreast of developments concerning the Ohio Constitution can follow Ohio Constitution News without any cost by subscribing through email or by signing up on Twitter. Both options are available on the right side of the following linked OCN entry.

 

Ohio Constitution News (OCN)

 

In addition to subscribing to Ohio Constitution News, interested persons can use the Ohio Constitution Law and History website for research on the Ohio Constitution and its history. You can google “Ohio Constitution: Law and History Webpage” or use the following link:

 

Ohio Constitutional Law and History

 

Feel free to contact Professor Steinglass if you have any questions or suggestions about OCN or the website.

 

Steven H. Steinglass
Dean Emeritus & Professor Emeritus
Cleveland-Marshall College of Law
Cleveland State University
s.steinglass@csuohio.edu
(216) 469-6619 (cell)

 

The year 2021 represents the third consecutive year in which Ohio voters were not presented an opportunity to vote on any proposed amendments to the Ohio Constitution.

In the first two decades of the 21st century, Ohio voters approved 18 of 31 proposed amendments to the Ohio Constitution. Of the 31, 16 were proposed by the state’s constitutional initiative, but voters approved only 5 of them and rejected 11. Of the 15 amendments proposed by the General Assembly during this period, the voters approved 13 and rejected 2. Thus, the historic experience of Ohio voters being far more likely to approve amendments proposed by the General Assembly than by the initiative has continued. Statistical tables summarizing the historic pattern of approvals and disapprovals of state constitutional amendments are on the Ohio Constitutional Law and History Webpage

The 5 constitutional amendments proposed by initiative and approved by the voters in the 21st century added provisions to the Ohio Constitution:
• To bar same-sex marriage (2004) (Art. XV, sec. 111)
• To require increases in the state minimum wage
(2006) (Art. II, sec. 34a)
• To permit casino gambling in four locations around
the state (2009) (Art. XV, sec. 6(C))
• To grant a freedom to choose healthcare (2011) (Art.
I, sec. 21)
• To amend the constitutional provision known as
“Marsy’s Law,” which protects the rights of crime
victims (2017) (Art. I. sec. 10a)

In the three years since 2018, there have not been any proposed constitutional amendments on the ballot, thus making this the longest period since the 1912 adoption of the initiative in which the voters have not been presented with any amendments proposed by either the General Assembly or the initiative.

Despite the absence of proposed initiated amendments on the ballot, there have been multiple efforts to place proposed amendments on the ballot. The website of the Ohio Attorney General, which lists amendments proposed by initiative, reports that since the beginning of 2007, a period of almost 15 years, 48 petitions were submitted to the Attorney General with the text of the proposed amendment and a summary of the proposed amendment. If the Attorney General determines that the summary is a “fair and truthful” statement of the proposed amendment, Attorney General forwards the petition to the Ohio Ballot Board for a determination of whether the petition contains only one proposed amendment. Only then may petitioners begin collecting signatures, which they must submit to the Secretary of State.

On Monday, October 7, 2019, in the afternoon, the Ohio State Bar Association will be sponsoring a program on The Importance of the Ohio Constitution.  The program, which was organized by Cleveland-Marshall Dean Emeritus & Professor Emeritus Steven H. Steinglass, will be held in Columbus at OSBA headquarters, and will be simulcast in Cleveland and Fairfield and will be available as a for-credit live webinar program.  A copy of the program brochure is attached.
In addition to Dean Steinglass, featured speakers will include Ohio Supreme Court Justices Judith L. French, Patrick F.  Fischer, and T. Patrick DeWine, Sixth Circuit Judge Jeffrey S. Sutton, Case Western Professor John L. Entin, and Rutgers Professor Robert F. Williams.

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