THE STATE EX REL. DEBLASE ET AL. v. OHIO BALLOT BOARD ET AL.
No. 2023-0388
SUPREME COURT OF OHIO
Decided June 1, 2023
2023-Ohio-1823
Submitted May 2, 2023
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2023-OHIO-1823
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. DeBlase v. Ohio Ballot Bd., Slip Opinion No. 2023-Ohio-1823.]
Mandamus—Initiative petitions—Ohio Ballot Board did not abuse discretion or disregard applicable law in determining that petition at issue proposes only one constitutional amendment, as required by
IN MANDAMUS.
Per Curiam Opinion announcing the judgment of the court.
{¶ 1} This action arises from an initiative petition proposing a constitutional amendment titled “The Right to Reproductive Freedom with Protections for Health and Safety.” According to its text, the proposed amendment to the Ohio Constitution would protect an individual‘s “right to make and carry out one‘s own
{¶ 2} Respondents, the Ohio Ballot Board and its members, determined under
{¶ 3} We deny the writ. Because the petition at issue in this case contains a single constitutional amendment, the ballot board did not abuse its discretion or disregard applicable law.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Constitutional-Amendment Process
{¶ 4}
{¶ 5} After receiving a certified preliminary initiative petition from the attorney general, the ballot board must examine it within ten days “to determine whether it contains only one proposed * * * constitutional amendment so as to
{¶ 6} After receiving resubmitted summaries of divided petitions, the attorney general shall review them within ten days to determine whether they are fair and truthful statements of the proposed amendments.
{¶ 7} For a proposed amendment to qualify for the ballot, the petition must contain valid signatures from at least 44 of Ohio‘s 88 counties, in an amount equal to at least 5 percent of the total votes cast in the last gubernatorial election in those 44 counties.
B. The Proposed Amendment
{¶ 8} On February 21, 2023, the attorney general received a petition containing a proposed constitutional amendment titled “The Right to Reproductive Freedom with Protections for Health and Safety” and a summary of the proposed amendment. The petition indicates that respondents Nancy Kramer, Aziza Wahby, David Hackney, Jennifer McNally, and Ebony Speakes-Hall (collectively, “the committee“) are the members of a committee designated to represent the petitioners. The full text of the proposed amendment reads:
Be it Resolved by the People of the State of Ohio that Article I of the Ohio Constitution is amended to add the following Section:
Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety
A. Every individual has a right to make and carry out one‘s own reproductive decisions, including but not limited to decisions on:
- contraception;
- fertility treatment;
- continuing one‘s own pregnancy;
- miscarriage care;
- abortion.
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:
- An individual‘s voluntary exercise of this right or
- A person or entity that assists an individual exercising this right,
unless the State demonstrates that it is using the least restrictive means to advance the individual‘s health in accordance with widely accepted and evidence-based standards of care. However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient‘s treating physician it is necessary to protect the pregnant patient‘s life or health.
C. As used in this Section:
- “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient‘s treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”
- “State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.
{¶ 9} On March 2, the attorney general certified that the summary submitted with the petition was a fair and truthful statement of the proposed constitutional amendment. The attorney general submitted his certification to the secretary of state under
{¶ 10} On March 13, the ballot board held a meeting under
{¶ 11} The ballot board voted five to zero to determine that the petition contains one proposed amendment to the Ohio Constitution. After the board‘s vote, the secretary of the board issued a letter to the attorney general under
{¶ 12} Relators commenced this action on March 20, naming as respondents the ballot board, its members (Secretary of State LaRose, Theresa Gavarone, Paula Hicks-Hudson, William N. Morgan, and Elliot Forhan), and the committee. They ask us to issue a writ of mandamus ordering:
- the secretary of state to convene a meeting of the ballot board at the earliest possible date;
- the board to vacate its March 13 determination and instead issue a determination that the petition contains more than one proposed amendment to the Ohio Constitution;
- the board to divide the petition into individual petitions, each containing only one proposed amendment;
- the board to certify the approval of each of the individual petitions containing only one proposed amendment to the attorney general.
{¶ 13} The committee filed an unopposed motion to expedite respondents’ answers to the complaint and the parties’ submission of evidence and merit briefs. We granted the motion and set an expedited schedule. 169 Ohio St.3d 1477, 2023-Ohio-997, 205 N.E.3d 558. Respondents filed answers, and the parties submitted their evidence and merit briefs in accordance with the expedited schedule.
A. The Committee
{¶ 14} Although relators’ complaint names the members of the committee as respondents, relators actually seek relief only from the ballot board and its members. Relators’ complaint does not request that the committee be ordered to take any action, nor does their merit brief argue that we should issue a writ of mandamus against the committee. We therefore deny the writ as to the committee. See State ex rel. Walker v. LaRose, 164 Ohio St.3d 569, 2021-Ohio-825, 174 N.E.3d 735, ¶ 13-15 (denying the writ as against respondents who could not provide the relief sought in the complaint).
B. Claim Against Ballot Board and Its Members
{¶ 15} To be entitled to a writ of mandamus against the ballot board, relators must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the board‘s part to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Husted v. Brunner, 123 Ohio St.3d 119, 2009-Ohio-4805, 914 N.E.2d 397, ¶ 11. The third element is satisfied in this case because there is no right to appeal the board‘s determination. State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27. As to the first two elements, absent evidence of fraud or corruption (which relators do not allege here), the standard is whether the board abused its discretion or clearly disregarded applicable law in determining that the proposed initiative petition contains a single constitutional amendment. Id. at ¶ 30.
1. Ballot board did not disregard applicable law
{¶ 16} In Ohio Liberty Council, we established the rule for deciding whether an initiative petition proposing an amendment to the Ohio Constitution contains one or more amendments. At issue in that case was a proposed amendment to “preserve the freedom of Ohioans to choose their health care and health care coverage.” Ohio Liberty Council at ¶ 3. The first three sections of the proposed
{¶ 17} The ballot board certified to the attorney general that the petition contained two proposed constitutional amendments. Id. at ¶ 16, 19. The board determined that the proposal contained one amendment “‘deal[ing] with the freedom to choose health care and health care coverage‘” and a second one “‘deal[ing] with the governance and oversight of the health care and health insurance industries.‘” Id. at ¶ 20, quoting the board‘s certification letter. The relators in Ohio Liberty Council sought a writ of mandamus to compel the secretary of state and the ballot board to certify the board‘s approval of the proposed amendment to the attorney general as written: as one constitutional amendment. Id. at ¶ 21.
{¶ 18} We analogized the separate-petition requirement of
{¶ 19} Applying that standard, we held that the proposal in Ohio Liberty Council contained only one amendment because all the sections bore “some reasonable relationship to the single general purpose of preserving Ohioans’ freedom to choose their health care and health-care coverage as it existed on March 19, 2010, with certain exceptions.” Ohio Liberty Council at ¶ 43. We therefore held that the ballot board had abused its discretion and disregarded
{¶ 20} Notwithstanding Ohio Liberty Council, relators argue that the initiative petition at issue here includes multiple constitutional amendments because it groups a right to abortion “under the rubric of ‘one‘s own reproduction decisions’ and on par with ‘contraception,’ ‘fertility treatment,’ and ‘miscarriage care’ (and whatever other rights are being established).” Abortion cannot be grouped with other reproductive rights, argue relators, because abortion is “a unique act” that is “inherently different” from all other intimate personal decisions. Relators quote language from the United States Supreme Court‘s abortion jurisprudence as support for this proposition. See Roe v. Wade, 410 U.S. 113, 159, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion is “inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education,” with which its earlier personal-privacy cases were concerned); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 852, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“Abortion is a unique act“); Dobbs v. Jackson Women‘s Health Org., 597 U.S. 215, 142 S.Ct. 2228, 2258, 213 L.Ed.2d 545 (2022), quoting Roe at 159 and Casey at 852 (abortion is “sharply distinguishe[d]” from other intimate personal rights because it “destroys * * * ‘potential life‘“).
{¶ 22} Section A of the proposed amendment states: “Every individual has a right to make and carry out one‘s own reproductive decisions, including but not limited to decisions on” contraception, fertility treatment, continuing one‘s own pregnancy, miscarriage care, and abortion. Thus, the first provision of the proposed amendment specifies a general purpose (protecting an individual‘s right to make reproductive decisions) and then specifies five types of reproductive decisions that would be covered by the amendment. The other three sections relate to Section A: Section B prohibits the state from interfering with the exercise of the rights identified in Section A, Section C defines terms related to reproductive rights, and Section D makes the amendment self-executing. Accordingly, each of the provisions in the proposed amendment bears some reasonable relationship to the single general purpose of protecting reproductive rights. Even if we accept relators’ argument that abortion is a “unique” act that is “inherently different” from other reproductive decisions, the decision to obtain an abortion is still a reproductive decision.
{¶ 23} In addition, relators argue that regardless of whether the proposed amendment‘s provisions relate to a “single general purpose,” the initiative contains multiple amendments because it encompasses both (1) broad and general language encompassing a new constitutional right and (2) specific details in the nature of a legislative enactment, such as “detailed definitions” of the terms contained in the proposed amendment. Thus, according to relators, the proposal contains “two
{¶ 24} The only requirement under
{¶ 25} For the foregoing reasons, we conclude that the ballot board did not disregard applicable law in deciding that the initiative petition contains one proposed constitutional amendment.
2. Ballot board did not abuse its discretion
{¶ 26} Relators also argue that the ballot board abused its discretion by failing to undertake any “substantive inquiry, assessment, analysis, or discussion of the proposed constitutional amendment” at its March 13 meeting. According to relators, the “summary and perfunctory manner” in which the board made its decision was an abuse of discretion that warrants the writ they request.
{¶ 27} An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable attitude. State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 12. There is no such showing on the record here. The ballot board conducted a formal meeting, heard public comment from relator Giroux and counsel for the committee, and voted on the matter. Though relators complain that the board failed to issue a formal decision explaining its rationale, the board had no duty to provide one. Nor is there any statutory requirement that the board conduct any particular type of proceeding before announcing its decision. The board performed its statutory duty to determine whether the initiative petition contains one proposed amendment, which it could reasonably determine from the face of the document.
IV. CONCLUSION
{¶ 28} For the foregoing reasons, we conclude that the ballot board did not abuse its discretion or disregard applicable law in determining that the initiative petition at issue proposes only one constitutional amendment. We therefore deny the writ.
Writ denied.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, C.J., concurs in judgment only, with an opinion joined by DEWINE and DETERS, JJ.
FISCHER, J., concurs in judgment only.
KENNEDY, C.J., concurring in judgment only.
{¶ 29} I agree that respondent Ohio Ballot Board did not abuse its discretion or disregard applicable law when it determined that the initiative petition at issue in this case proposes a single constitutional amendment. I write separately, however, because the lead opinion adheres to this court‘s decision in State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410. In my view, Ohio Liberty Council improperly grafted a “single-subject rule” onto the people‘s power to propose amendments to the Ohio Constitution.
{¶ 30} Our state Constitution is founded on the fundamental principle that “[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary.”
{¶ 31} When the people ratified the Ohio Constitution, they reserved in
When a petition signed by [10 percent] of electors, shall have been filed with the secretary of state, and verified as herein provided, proposing an amendment to the constitution, the full text of which shall have been set forth in such petition, the secretary of state shall submit for the approval or rejection of the electors, the proposed amendment, in the manner hereinafter provided, at the next succeeding regular or general election in any year occurring subsequent to one hundred twenty-five days after the filing of such petition.
{¶ 32} The general requirements and procedures that apply to all initiative and referendum petitions on statewide issues are established by
{¶ 33}
{¶ 34} As noted above,
{¶ 35} My separate opinion in State ex rel. Ohioans for Secure & Fair Elections v. LaRose, 159 Ohio St.3d 568, 2020-Ohio-1459, 152 N.E.3d 267 (”Ohio
{¶ 36} Although neither
{¶ 38} In State ex rel. Greenlund v. Fulton, we explained that the word “amendment” when used in connection with the state Constitution has “a dual meaning, the particular one to be determined by its relationship.” 99 Ohio St. 168, 179, 124 N.E. 172 (1919). We continued:
An amendment to the Constitution, which is made by the addition of a provision on a new and independent subject, is a complete thing in itself, and may be wholly disconnected with other provisions of the Constitution; such amendments, for instance, as the first ten amendments of the Constitution of the United States. * * *
Then there is the use of the word “amendment” as related to some particular article or some section of the Constitution, and it is then used to indicate an addition to, the striking out, or some change in, that particular section.
Id. Therefore, “an amendment is both the addition of a wholly new provision to the Constitution or the changes made to an existing article or section.” Ohio SAFE, 159 Ohio St.3d 568, 2020-Ohio-1459, 152 N.E.3d 267, at ¶ 94 (Kennedy, J., concurring in judgment only).
{¶ 39} The proposed amendment at issue in this case is one stand-alone amendment. It would create a wholly new provision in the Ohio Constitution: Article I, Section 22. That should end the analysis, because in ratifying
{¶ 40} Consequently, the ballot board did not abuse its discretion or disregard applicable law when it determined that the initiative petition at issue here contains one proposed amendment to the Ohio Constitution. For this reason, I agree that the relators in this case have failed to establish their entitlement to the requested writ of mandamus. However, because I would hold that a proposed amendment is not limited to a single subject, object, or purpose, I concur in judgment only.
DEWINE and DETERS, JJ., concur in the foregoing opinion.
The Law Firm of Curt C. Hartman and Curt C. Hartman, for relators.
Dave Yost, Attorney General, and Julie M. Pfeiffer, Ann Yackshaw, and Michael A. Walton, Assistant Attorneys General, for respondents Ohio Ballot Board, Frank LaRose, Theresa Gavarone, Paula Hicks-Hudson, William N. Morgan, and Elliot Forhan.
McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, and Katie I. Street; and ACLU of Ohio Foundation and Freda J. Levenson, B. Jessie Hill, and Carlen Zhang-D‘Souza, for respondents Nancy Kramer, Aziza Wahby, David Hackney, Jennifer McNally, and Ebony Speakes-Hall.