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Category Archive for 'Legislation'

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.

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.

The Ohio General Assembly has approved a proposed amendment, SJR 5 (132nd GA (2018)), to add a new Article, Article XIX, to the Ohio Constitution to address congressional redistricting.  The proposed amendment will be on the May 8, 2018, ballot, and Ohio voters will have to approve this amendment for it to become part of the Ohio Constitution.

In November 2015, Ohio voters approved an amendment proposed by the General Assembly to revise the way in which state legislative district lines are drawn and the standards for drawing these lines.  This process, known as Apportionment, is addressed in Article XI of the Ohio Constitution, and it does not deal with congressional redistricting, which has been left in the hands of the General Assembly.

The 2015 amendment created an Ohio Legislative Districting Commission to address state apportionment, and the proposed amendment would give this Commission the authority to also address congressional redistricting.

Congressional redistricting has become a visible issue given the fact that in this relatively evenly split state, one political party has 12 of the 16 congressional seats.  The need for significant changes in the district lines will become more acute after the 2020 census, since Ohio will likely lose one seat in Congress.

A recent article in the Columbus Dispatch succinctly described the proposal as follows:

The proposed constitutional amendment sets up a bipartisan process to draw a new 10-year map, significantly changing the current map-drawing process that allows the majority to work alone, gerrymandering districts to its benefit. Republicans have held a firm grip on 12 of Ohio’s 16 congressional districts since drawing the map in 2011, and few races have been competitive.

*        *        *

Unlike the current process, which requires no minority-party support and has few rules that need followed, the new proposal initially requires 50 percent of the minority party in each chamber to approve a map for 10 years. It also would limit how often counties can be split into multiple congressional seats, and it would require public hearings and the ability for the public to submit maps.

Under that plan, 65 counties cannot be divided, 18 can be divided once and five can be divided twice into three congressional districts. Currently, many counties are split, such as Cuyahoga and Summit counties in Democrat-rich northeast Ohio that are split into four districts as Republicans sliced them up for partisan advantage.

If the legislature is unable to come to a bipartisan agreement, the multi-step process moves to a seven- member commission consisting of the governor, auditor, secretary of state and four lawmakers, where a 10-year map would require at least two minority-party votes.

If that fails, the process goes back to the legislature, where it would require a three-fifths vote in each chamber, including one-third of each minority caucus, to pass a 10-year map.

If there’s still no deal, the majority can draw a four-year map on its own, but it would be under stricter criteria, including prohibitions against several acts — “unduly” splitting counties and other jurisdictions, drawing a district that favors or disfavors a party, or drawing districts to favor incumbents. That process also would require the majority to formally justify why it decided to draw each district, which advocates say would hold them accountable to the courts and the public.

Any map that is approved would be subject to a potential governor’s veto, or a ballot referendum that attempts to overturn the map.

Jim Siegel, Bipartisan deal finalized, voters to decide congressional redistricting changes (Dispatch) (2-6-2018)

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.

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.

Proposed Amendment

ohiostatehouse Senator Sandra Williams has recently introduced a Senate Joint Resolution proposing an amendment to the Ohio Constitution. Senate Joint Resolution 6 would “amend Section 10 of Article I of the Constitution of the State of Ohio to allow the prosecutor in a felony case to elect to prosecute upon a finding of probable cause by a court following a hearing rather than upon indictment by a grand jury.” For the full text of the resolution, click here.

If you are interested in learning more about this resolution, or in conducting other legislative history research, check out C|M|LAW Library’s Legislative History Research Guide.

Ohio’s budget act, HB 64, requires that municipalities operating traffic cameras in violation of state restrictions lose local government funding from the state in the amount equal to the fines collected from the cameras.  The Ohio legislature recently enacted restrictions on traffic cameras, such as requiring police officers to be present, and other restrictions. See SB 342.  Several county courts held these traffic camera restrictions in violation of the Ohio Constitution’s home rule provisions.  See our prior post:  State Restrictions on Traffic Cameras Violate Home Rule, Says Lucas County Court.  These cases are pending on appeal.

Former Ohio Supreme Court Justice Andy Douglas testified that because the HB 64 provisions rely upon an unconstitutional law (SB 342), the traffic camera provisions of HB 64 fail of their own weight .Douglas Testimony.  Justice Douglas also warned that the traffic camera provisions of HB 64 set a dangerous precedent that the legislature could use in the future to undermine or even eliminate municipal home rule powers.   Also see Cleveland.com:  Punishing cities that defy traffic-camera rules could cause ‘constitutional crisis,’ ex-Supreme Court justice warns.

The budget bill passed by the Ohio House and Senate, 131st General Assembly Amended Substitute HB 64, will terminate the Ohio Constitutional Modernization Commission (OCMC) on January 1, 2018.    It will repeal sections 103.61, 103.62, 103.63, 103.64, 103.65, 103.66, and 103.67 of the Revised Code on that date.   Am. Sub. H.B. 64 awaits signature by Governor Kasich.

According to the Columbus Dispatch, Constitution-reform panel must be preserved:

The commission, created in 2011, was charged with researching and debating whether and how the Ohio Constitution could be changed to address longstanding flaws in state government. It was given 10 years to do so — it is set to expire in July 2021 — but didn’t really get off the ground for two years, thanks largely to legislators’ neglect.

It was intended to perform the same function as a similar commission empanelled in the 1970s.

Even so, in less than a year and a half of focused work, led by some sterling volunteers, committees of the bipartisan commission have reached consensus on thorny issues that a hopelessly partisan and short-sighted legislature has proved incapable of addressing.

The Ohio Senate Finance Committee previously proposed eliminating the OCMC as of January 1, 2016.  See our prior post Ohio Senate Finance Committee Wants to Eliminate the Ohio Constitutional Modernization Commission.

 

House Joint Resolution 4,  introduced yesterday, would amend the Ohio Constitution to restrict amendments  to the Ohio Constitution that create economic benefits in favor of certain individuals.  Initiatives by the General Assembly would not face these restrictions, only initiatives by individuals.  An individual or group wanting to amend the Ohio Constitution to create an economic benefit would have to get voters to pass a Constitutional amendment allowing deviation from the “no special interests rule” for that particular special  interest.  Then the next year, the actual amendment creating the special interest could go on the ballot.

The impetus for House Joint Resolution 4 was Responsible Ohio’s marijuana legalization amendment that will likely go on the ballot this November.  ResponsibleOhio’s amendment creates ten grow sites which will be owned by ballot campaign investors.  The legislature would have to act fast in order to get their proposed constitutional amendment on the ballot this November.  The deadline for the General Assembly to get initatives on the ballot is August 3, but the General Assembly leaves for the summer at the end of June.

See Columbus Dispatch, Legislators move to block marijuana monopoly.  Representative Kathleen Clyde expressed concern that the language of HJR 4 is too broad and may have unintended consequences in inhibiting initiatives.   Professor Douglas Berman , Ohio State College of Law, wondered if it was even constitutional to have a constitutional amendment restricting initiatives.  Dean Emeritus Steven H. Steinglass , Cleveland-Marshall College of Law, spoke to what would happen if BOTH the no special interest amendment and the ResponsibleOhio amendment pass in November.  Steinglass thinks a court could rule that marijuana is legal, but the provisions creating the monopoly must be stricken.

The Ohio Senate Finance Committee wants to sunset the Ohio Constitutional Modernization Commission (O.C.M.C.) on Jan 1, 2016.  See the Committee’s report on the budget bill, Amended Substitute HB 64.   The Ohio Legislature created the Commission in 2011 to make recommendations to the General Assembly as to Constitutional revision. See  HB 188 (129th General Assembly).  The Commission was set to expire in 2021.

According to Cleveland.com:

… The Senate’s budget calls for ending the commission at the end of this year, a move that would save $950,000 in appropriations during the next two years.

“It’s been going long enough,” Oelslager [Senate Finance Chairman Scott Oelslager] said when asked why the Senate is seeking the change. “It’s time to wrap up.”

See Cleveland.com Ohio Senate’s budget looks to kill education fund, constitutional study group

The budget proposal must be approved by the full Ohio Senate, approved by a conference committee and signed by the Governor.

A similar bipartisan commission was created in 1969, called the Ohio Constitutional Revision Commission. The Ohio Constitutional Revision Commission issued its final report in 1977.  Ohio voters approved 16 of the 20 amendments that had their origins in recommendations made to the General Assembly by the Commission.

The O.C.M.C. has approved some recommendations, but has not yet submitted any recommendations to the General Assembly.  See  Ohio Constitutional Modernization Commission Recommends Deleting Two Unused Sections Pertaining to Courts.   The Commission played a significant role in recent Ohio legislative redistricting reform efforts, which culminated in the passage of HJR 12.   HJR 12 puts redistricting reform measures on the ballot which would make the redistricting process more nonpartisan.

The Ohio Constitutional Modernization Commission is addressing important questions concerning the state’s main governing document, including:

  • How to eliminate defects in the debt provisions of the Ohio Constitution.  These provisions require passing frequent constitutional amendments because of an antiquated $750,000 debt limitation.
  • Whether to amend the initiative process to prohibit special interest groups from hijacking the Ohio Constitution.
  • Whether to modify the initiative process in favor of a system that would encourage members of the public wishing to effect change to pursue statutory enactment rather than the adoption of constitutional amendments.  This may include making the seldom-used statutory initiative process easier.
  • How to amend Congressional redistricting provisions to make the redistricting process more nonpartisan.
  • Whether to amend Ohio’s current method of electing judges.
  • A provision to revise the current constitution which denies the right to vote to “idiot[s and insane persons”.
  • The repeal of numerous obsolete provisions of the constitution.

When HB 188 (129th General Assembly) was under consideration by the legislature, committee testimony included:

  • Ohio State University President Gordon Gee:

Gee said there is an “absolutely clear and compelling” case for convening a constitutional commission, noting the number of useful reforms from a previous commission, including the linking of the elections of governor and lieutenant governor. He said the commission format would be “bipartisan,” “thoughtful” and “broad-based” and would grant sufficient time to consider all the issues. 

Hannah News, House State Government and Elections, Jun. 7, 2011.

  • Dennis Hetzel, executive director of the Ohio Newspaper Association:

“We will leave it up to our individual members to report and editorialize upon the deliberations and outcomes of this commission, but the concept makes sense and will provide Ohio’s citizens a foundation for an important discussion.”

Hannah News, House State Government and Elections, May 24, 2011

  • Beth Vanderkooi, Ohio Farm Bureau:

 [the bill is] an “excellent mechanism to review the Ohio Constitution in a manner that, while not immune from partisan politics, is consistent with a bipartisan approach.”

Hannah News, House State Government and Elections, May 24, 2011

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