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 . . . .”

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.

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 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.

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 Legislative and Executive Branch Committee of the Ohio Constitutional Modernization Commission discussed the one subject rule contained in the Ohio Constitution, as well as amending the Ohio Constitutional to reform Congressional Redistricting.  See OCMC Press Release.   View meeting materials, including expert reports, here.