SJR 3 Proposing to enact Section 2t of Article VIII of the Constitution of the State of Ohio to permit the issuance of general obligation bonds to fund sewer and water capital improvements.
Joint Resolution Introduced – Amend Ohio Constitution for Water and Sewer Capital Improvements
Sep 2nd, 2015 by saltmeyer
Beck Energy Challenges Munroe Falls Zoning Ordinances Which Prohibit Drilling
Aug 31st, 2015 by saltmeyer
Beck Energy filed a mandamus action in the Ohio Supreme Court, seeking to vacate a stop work order issued by Munroe Falls to halt work on the Sunoco well. Beck Energy seeks a declaration that:
“The Home Rule Amendment to the Ohio Constitution, Article XVIII,Section 3, does not allow Munroe Falls to enact a zoning ordinance that discriminates against, unfairly impedes, and obstructs oil and gas activities and production operations that the state of Ohio expressly permits and regulates under R.C. Chapter 1509.”
According to the complaint, the zoning ordinances prohibit drilling in 99.06% of the city’s territory.
The Ohio Supreme Court previously held that City of Munroe Falls’ ordinances requiring drillers to get a conditional zoning certificate, pay a deposit for a performance bond, hold a public hearing and a wait a year before drilling were preempted by State law regulating drilling. State of Ohio ex rel. Beck Energy, Supreme Court of Ohio case no. 2015-1019. However, this was a plurality opinion. The concurrence expressed that whether a zoning ordinance is necessarily in conflict with State oil and gas laws is an open question. By filing this lawsuit, Beck Energy appears to be seeking a clear answer as to whether municipalities can use zoning ordinances to prohibit drilling.
Athens News: Will Ohio communities be allowed to zone out fracking?
ResponsibleOhio Sues, Claiming Ballot Language Deceptive
Aug 27th, 2015 by saltmeyer
ResponsibleOhio filed a complaint in mandamus challenging the ballot language of their marijuana legalization initiative petition. View the complaint. View the court docket. The complaint alleges that the ballot adopted by the Ohio Ballot Board violates Article XVI, Section 1 of the Ohio Constitution which requires that ballot language can not deceive, mislead or defraud the voters.
Monopoly Probably Not Severable From the Marijuana
Aug 18th, 2015 by saltmeyer
Dean Emeritus Steven H. Steinglass opines that if both anti-monopoly and the “marijuana monopoly” amendments to the Ohio Constitution are passed and the anti-monopoly amendment gets more votes, the anti-monopoly amendment will completely wipe out the ResponsibleOhio “marijuana monopoly” amendment because:
1. The Anti-monopoly amendment contains the following language:
If, at the general election held on November 3, 2015, the electors approve a proposed constitutional amendment that conflicts with division (B)(1) of this section with regard to the creation of a monopoly, oligopoly, or cartel for the sale, distribution or other use of any federal Schedule I controlled substance, then notwithstanding any severability provision to the contrary. the entire proposed constitutional amendment shall not take effect.
and,
2. The monopoly provisions are too embedded in the ResponsibleOhio amendment, so a court could not sever the monopoly provisions and leave the rest remaining.
See Cleveland.com: What happens if both marijuana legalization and anti-monopoly amendments pass?
Marijuana Monopoly will be on the Ballot – Conflicts with Proposed Anti-Monopoly Amendment (Updated)
Aug 13th, 2015 by saltmeyer
The Ohio Secretary of State verified that ResponsibleOhio obtained sufficient signatures for their marijuana amendment to appear on the ballot this fall. See Cleveland.com, Marijuana legalization amendment approved for Ohio’s November ballot. The proposed amendment would limit the growing of marijuana to ten sites specified in the Ohio Constitution. The ten sites are owned by ballot campaign investors, but the campaign investors are selling shares in their marijuana farms. Cleveland.com: ResponsibleOhio investors to sell shares in pot growing companies. There are no similar limitations on who can manufacture marijuana items and sell them retail.
The ResponsibleOhio proposed amendment will be Issue 3 on the ballot. Also on the ballot will be proposed amendments to the Ohio Constitution for redistricting reform for Ohio legislative districts, and to restrict constitutionally created monopolies. The later proposed amendment was created in response to the ResponsibleOhio marijuana amendment.
So, what will happen if the ResponsibleOhio amendment and the anti-monopoly amendment both pass? Ohio Constitution Article II, Section 1b provides that if amendments conflict,and both are approved, the amendment with the most votes will amend the Constitution. The Supreme Court of Ohio may ultimately decide whether the two amendments conflict, and which one prevails. See State ex rel. Greenlund v. Fulton (1919), 99 Ohio St. 168.
State ex rel. Greenlund resolved the only situation in Ohio history where two proposed amendments conflicted and both were passed. The two conflicting amendments concerned taxes:
1. The Shinn Amendment – proposed by the General Assembly in March, 1917, this initiative aimed to amend Ohio Constitution Article XII, Section 2 to eliminate taxation of both real property and a mortgage on real property. The amendment language kept the existing language of Article XII, Section 2 which established a system of uniform taxation, meaning all types of property are taxed at the same rate.
2. The Classification Amendment – proposed by Initiative Petition in 1918, went even further. It proposed a classification system of taxation. The uniform tax rate language of Ohio Constitution Article XII, Section 2 would be changed to allow different tax rates for different types of property – such as real property vs. personal property. The thought was that if personal or intangible property was taxed at a lower rate than real property, the owners of the personal property would be less apt to hide it and more apt to pay the tax.
Both amendments passed, but the Shinn amendment garnered more yes votes than the Classification Amendment. The Ohio Supreme Court decided that the two amendments were actually in conflict, so the Shinn Amendment would amend the Ohio Constitution, while the Classification Amendment would not. See State ex rel. Greenlund v. Fulton (1919), 99 Ohio St. 168. The court found that because the Shinn amendment included the uniform tax language of the existing constitutional section, it conflicts with the Classification amendment, which would replace uniform tax with classification.
The Classification Amendment was on the ballot again in 1919, and was defeated. Ohio farmers voiced stronger opposition to the Classification Amendment in 1919 than in 1918.
Fast forward to 2015. The situation is a bit different because the Anti-Monopoly law and the marijuana amendment relate to different sections of the Ohio Constitution. The marijuana amendment adds Article XV, Section 12 and the Anti-Monopoly proposal amends Section 1e of Article II. However, the two proposals are clearly in conflict. One severely restricts special interest amendments, while the other would in fact be an amendment to the Ohio Constitution creating a special interest. But, if both amendments pass, could the provisions of the marijuana amendment that don’t create a special interest survive to amend the Ohio Constitution? Maybe – but the language of Ohio Constitution Article II, Section 1b does provide that:
If conflicting proposed laws or conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes shall be the law, or in the case of amendments to the constitution shall be the amendment to the constitution.
The language of the constitution itself does not provide for striking some provisions of a proposed amendment and enacting others.
Update: It was pointed out to me that the Anti-Monopoly amendment contains the following language:
If, at the general election held on November 3, 2015, the electors approve a proposed constitutional amendment that conflicts with division (B)(1) of this section with regard to the creation of a monopoly, oligopoly, or cartel for the sale, distribution or other use of any federal Schedule I controlled substance, then notwithstanding any severability provision to the contrary. the entire proposed constitutional amendment shall not take effect.
Thus, if voters approve the Anti-Monopoly amendment with more votes, this language would prohibit severing the monopoly from the marijuana. If the ResponsibleOhio amendment gets more votes, however, the provisions of the Anti-Monopoly amendment dealing with the 2015 election could be severed and the other provisions remain – assuming such severability is allowed.
Appeals Court Rules State Restrictions on Traffic Cameras are Constitutional
Aug 10th, 2015 by saltmeyer
The Second District Court of appeals held that SB 342 did not violate the Ohio Constitution’s home rule provisions. SB 342 requires police officers to be present when traffic cameras are operating, and imposes other restrictions on the use of traffic cameras. The Montgomery County Common Pleas Court ruled that these provisions violated the City of Dayton’s home rule rights, and granted a permanent injunction that allowed the city to continue citing motorists without officers present. The Court of Common Pleas decision was overruled and the permanent injunction vacated by the appellate court. The case is Dayton v. State, 2015-Ohio-3160.
Trial court erred when it granted partial summary judgment to appellee, finding that certain provisions of Am.Sub.S.B. No. 342 unconstitutionally violated appellee’s home rule powers. When properly analyzed in its entirety, Am.Sub.S.B. No. 342 constitutes a comprehensive, uniform, statewide regulatory scheme which clearly prescribes a rule of conduct upon citizens generally. Accordingly, we find that Am.Sub.S.B. No. 342 is a general law that does not violate Article XVIII, Section 3 of the Ohio Constitution, the “Home Rule Amendment.” Judgment reversed and permanent injunction vacated.
See Dayton Daily, Court sides with state in Dayton traffic camera case.
In State ex rel. Ullmann v. Husted, 2015-Ohio-3120, the Franklin County Court of Appeals held that an individual suing for mandamus relief from the JobsOhio statute did not have standing under the public rights doctrine. The relator asked the court to not only declare the law creating JobsOhio unconstitutional, but also to direct state officeholders to take action, including requiring Secretary of State John Husted to revoke its articles of incorporation and State Auditor David Yost to audit the organization. So, this lawsuit did not have the limitations of the declaratory judgment action in ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014 Ohio 2382, 13 N.E.3d 1101. However, the Court of Appeals found that the JobsOhio law did not raise rare and extraordinary issues that threaten serious public injury. Thus, the relator lacked standing.
See CourtNewsOhio, Tenth District: Second Attempt to Challenge JobsOhio’s Constitutionality Fails
New Medical Marijuana Initiative Petition Rejected by AG
Jul 30th, 2015 by saltmeyer
The Ohio Attorney General rejected the Ohio Medical Cannabis Amendment Initiative Petition because of omissons in the summary language. See Akron News Now: Bad Day For Two Ohio Pot Issues.
Two New Cleveland State Law Review Notes on the Ohio Constitution
Jul 29th, 2015 by saltmeyer
Ohio Senate Introduces Congressional Redistricting Reforms
Jul 27th, 2015 by saltmeyer
SJR 2 ,introduced on July 22, 2015, reforms congressional redistricting in Ohio to make it more nonpartisan. A similar proposal is pending in the Ohio House, H.J.R. 2.
See Columbus Dispatch: Ohio senators push for congressional redistricting
See our prior post Ohio Can Proceed with Congressional Redistricting Reforms – SCOTUS Approves Independent Redistricting Commissions
