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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.

The Ohio Supreme Court adopted amendments to the Rules for the Government of the Bar of Ohio on February 23rd that will increase attorney fees. Attorneys from out of state who wish to appear in Ohio courts must pay pro hac vice registration fees. These fees will increase from $150, to $300.  The newly adopted amendments also include a voluntary $50 add-on fee to the existing $350 biennial active attorney registration fee. The fee increases were recommended by the Supreme Court’s Task Force on Access to Justice, and will become effective July 1, 2016. The money collected from the increased fees will be used to help fund legal aid services for low-income Ohioans.

Text of the amendments: Rule VI and XII amendments

The Ohio Supreme Court ruled yesterday in Lycan v. Cleveland that, under Article IV of the Ohio Constitution, an appellate court or the Supreme Court does not have jurisdiction if there was no final order issued by a trial court. The case was remanded to the trial court for further proceedings. Read more at cleveland.com.

The Ohio Supreme Court heard oral arguments this week in Clyde A. Hupp, et al. v. Beck Energy Corporation and XTO Energy, Inc. and  State of Ohio ex rel. Claugus Family Farm, L.P. v. Seventh District Court of Appeals, et al. Among other issues, attorneys for the Claugus Family Farm argued in a reply brief that their client’s due process rights under the U.S. and Ohio constitutions were violated. Read more at NGI’s Shale Daily.

Election Roundup

Ohio voters voted on proposed amendments to the state constitution this week regarding marijuana legalization, redistricting reform, and monopolies/ cartels created by amending the state constitution. Detailed statewide voting results are available at cleveland.com; a summary of the key election results is available at cincinnati.com. Read more about the constitutional issues at Bloomberg View.

On October 23, 2015, the Ohio Attorney General’s office certified the petition for the Ohio Fair Wage Amendment. Read more at cleveland.com.

Stand Up Ohio has submitted an initiative petition for the Ohio Fair Wage Amendment to the AG’s office. The AG’s office is expected to act on the petition by October 23, 2015. The amendment would gradually increase Ohio’s minimum wage to $12.00 by 2021. Read more about the petition in the Youngstown Vindicator.

The Ohio Attorney General has rejected a resubmitted medical marijuana initiative petition due to discrepancies between the summary and the proposed amendment. See Perry County Tribune, AG Rejects Second Petition for Ohio Medical Cannabis Amendment

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