State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections (Slip Opinion), 148 Ohio St. 3d 176

Background

Relators (Sensible Norwood PAC and its founder Amy Wolfinbarger) submitted initiative petitions to place a “Sensible Marihuana Ordinance” on Norwood’s November 8, 2016 ballot after the city auditor certified sufficient signatures and transmitted the petitions to the Hamilton County Board of Elections.
The Board reviewed the measure and unanimously refused to place it on the ballot, concluding the ordinance: (1) purports to create felony offenses (beyond municipal authority) and (2) imposes administrative restrictions on enforcement of existing state and federal laws.
The proposed ordinance defined certain marijuana/hashish possession offenses as felonies while simultaneously forbidding fines, incarceration, probation, or other punishment; it also barred reporting to authorities other than the city attorney, prohibited asset forfeiture, and barred driver-license suspensions.
Relators filed an expedited mandamus action in the Ohio Supreme Court to compel the Board to place the initiative on the ballot.
The Supreme Court reviewed whether the initiative addressed matters within municipal legislative authority (legislative) or improperly attempted to (a) define felonies or (b) control administration/enforcement of existing law (administrative).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a municipality may enact offenses classified as felonies	Relators: measure can classify offenses and include severability so unlawful portions can be struck later	Board: municipalities may only create misdemeanors; felonies are for the General Assembly	Held: Measure improperly attempts to define felonies; county board correctly rejected it
Whether provisions that restrict enforcement of state/federal law are legislative or administrative	Relators: provisions are legislative because they repeal/amend city criminal code and direct enforcement of the new ordinance	Board: provisions act as administrative limits on enforcement of existing laws and reach beyond city authority	Held: Provisions are administrative; administrative actions are not subject to initiative and justify withholding from ballot
Whether severability saves an otherwise non-initiative measure	Relators: severability clause allows courts to excise invalid provisions and leave valid ones for ballot	Board: severability cannot cure an otherwise non-submissible administrative or ultra vires measure	Held: Severability does not permit submission; board must withhold initiative when it is administrative or beyond municipal power
Whether relators are entitled to mandamus compelling ballot placement	Relators: they have a right to placement given auditor certification and voter-initiative process	Board: has statutory gatekeeping duty under R.C. to ensure measures are valid and within municipal authority	Held: Relators failed to show a clear legal right or the board’s clear legal duty; writ denied

Key Cases Cited

State ex rel. Walker v. Husted, 144 Ohio St.3d 361 (2015) (boards of elections may review petition sufficiency and validity)
State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472 (2002) (board must submit measure only if it determines petition is sufficient and valid under statutory standards)
State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437 (2005) (mandamus will not compel submission of measures outside municipal authority)
State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165 (1997) (initiative cannot be used for subjects municipalities lack authority to enact)
State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio St.3d 487 (2014) (board must withhold initiatives that are administrative)
State ex rel. Oberlin Citizens for Responsible Dev. v. Talarico, 106 Ohio St.3d 481 (2005) (administrative measures cannot be placed on ballot)
Donnelly v. Fairview Park, 13 Ohio St.2d 1 (1968) (test distinguishing legislative from administrative action)
State v. O’Mara, 105 Ohio St. 94 (1922) (only General Assembly may define and prescribe punishment for felonies)