State ex rel. Bolzenius v. Preisse (Slip Opinion)
119 N.E.3d 358
Ohio2018Background
- Six Columbus residents (relators) submitted an initiative to place a municipal "Community Bill of Rights for Water, Soil, and Air Protection" on the Nov. 6, 2018 ballot; it would prohibit many hydrocarbon-extraction activities, recognize rights for natural communities, create criminal penalties, and authorize any city resident to sue to enforce the ordinance.
- The Franklin County Board of Elections certified signatures but, after protests, the board voted to exclude the initiative from the ballot, finding it exceeded Columbus's legislative power (in particular, by creating new causes of action).
- Relators filed an original action seeking a writ of mandamus to compel the board to place the measure on the ballot; intervenors defended the board's exclusion.
- The court applied pre-H.B. 463 precedent holding that county boards of elections may determine whether a municipal initiative exceeds a municipality's legislative power.
- The court found the provision authorizing private enforcement would create a new cause of action, which municipalities lack authority to enact, and therefore held the board did not abuse its discretion in excluding the measure.
- The court denied the writ; it declined to decide constitutional challenges to H.B. 463 and refused to reach a separate argument about ballot-summary language as moot. Justice Fischer dissented, urging resolution of H.B. 463's constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board may review substantive legality of municipal initiatives | Relators: board's role is ministerial once signatures suffice; city council called the election, so board must place measure on ballot | Board: pre-H.B. 463 caselaw permits substantive review to determine if measure exceeds municipal power | Held: Board has authority under pre-H.B. 463 precedent; no abuse of discretion in excluding the measure |
| Whether the proposed ordinance exceeds Columbus's legislative power | Relators: ordinance is within municipal authority (home-rule) and valid subject for initiative | Board: ordinance would create new private causes of action and invalidate permits issued by other governments — beyond municipal power | Held: Ordinance would create a new cause of action — municipalities lack power to do so; exclusion upheld |
| Whether H.B. 463 is unconstitutional (separation of powers / one-subject rule) | Relators: statutory amendments unconstitutionally allow boards to decide substantive legal questions and violate one-subject rule | Respondents: court need not reach constitutionality because pre-H.B. 463 law already authorizes review | Held: Court declined to decide H.B. 463's constitutionality as unnecessary to disposition |
| Whether exclusion violated free-speech (Content-based) protections | Relators: excluding the petition based on its content violates First Amendment and Ohio Constitution | Board: exclusion was content-neutral enforcement of a structural limitation (no power to create causes of action) and applies to all initiatives | Held: Rejection was content-neutral; no First Amendment violation shown |
Key Cases Cited
- State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (2012) (mandamus elements and standard of proof)
- State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 147 Ohio St.3d 467 (2016) (mandamus relief when board abuses discretion)
- State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239 (2015) (boards may determine whether ballot measures fall within initiative power)
- State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio St.3d 176 (2016) (similar holding on boards' authority to exclude measures beyond municipal power)
- State ex rel. Flak v. Betras, 152 Ohio St.3d 244 (2017) (reaffirming boards' authority to determine whether municipal initiatives exceed legislative power)
- State ex rel. BSW Dev. Group v. Dayton, 83 Ohio St.3d 338 (1998) (court avoids constitutional questions unless necessary)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulation test for speech restrictions)