THE STATE EX REL. DUDLEY ET AL. v. YOST, ATTY. GEN.
No. 2024-0161
Supreme Court of Ohio
October 30, 2024
177 Ohio St.3d 50 | 2024-Ohio-5166
Submitted September 17, 2024
[This opinion has been published in Ohio Official Reports at 177 Ohio St.3d 50.]
Mandamus—Elections—Writ sought to direct attorney general to certify summary of proposed constitutional amendment—Limited writ granted
IN MANDAMUS.
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
Per Curiam.
{¶ 1} Relators, William Dudley, Terence Brennan, Michael Harrison, Pamela Simmons, and Deidra Reese, seek to place before Ohio voters a proposed constitutional amendment they have titled “Ohio Voters Bill of Rights.” As required by
{¶ 2} Relators seek a writ of mandamus directing the attorney general to certify their summary, contending that the attorney general is not authorized to review the title of a proposed constitutional amendment because the title is not part of the “summary.” We agree with relators that the attorney general‘s duty under
A. Proposing a Constitutional Amendment by Initiative Petition
{¶ 3} Article II, Section 1a of the Ohio Constitution reserves to the people the right to amend the Constitution by initiative petition. Under
{¶ 4} The petition must contain the signatures of at least 1,000 qualified electors of the State. Id. Within ten days after receipt of the petition and summary, “the attorney general shall conduct an examination of the summary.” Id. If the attorney general determines that the summary is “a fair and truthful statement” of the proposed amendment, the attorney general “shall so certify” and thеn forward the petition to the Ohio Ballot Board for its approval. Id. If the ballot board determines that the petition contains only one proposed amendment, it must certify its approval to the attorney general, who will in turn file with the secretary of state a verified copy of the proposed amendment, along with the summary and the attorney general‘s certification. Id.;
B. Relators’ Proposed Amendment
{¶ 5} On December 19, 2023, relators filed with the attorney general a petition containing a proposed constitutional amendment titled “Secure and Fair Elections,” along with a summary and the full text of the proposed amendment. The title is not part of the full text of the proposed amendment. The petition included the signatures of more than 2,000 Ohio electors. Relators’ proposed amendment would amend Article V, Sections 1, 2, and 6 of the Ohio Constitution and address topics including voter qualifications, voting as a fundamental right, voter registration and identification, access to absentee ballots, the procedures for conducting elections, the power of this court to require the General Assembly to make adequate appropriations to effectuate the provisions of the amendment, and the remedies available for individuals seeking to enforce the rights set forth in the amendment.
{¶ 6} On December 28, the attorney general responded to relators’ petition in a letter to their counsel, stating that he was “unable to certify the summary as a fair and truthful representation of the proposed amendment.” The attorney generаl “identified omissions and misstatements that, as a whole, would mislead a potential signer as to the scope and effect of the proposed amendment.” The letter identified four specific flaws in relators’ summary. One was that “the title ‘Secure and Fair Elections’ does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” Instead, the proposed amendment was, according to the attorney general, “a compilation of specific election regulations.”
{¶ 7} Relators contend that they resolved all issues raised in the attorney general‘s December 28 letter. They resubmitted their petition on January 16, 2024, along with the text of the proposed constitutional
{¶ 8} The attorney general respоnded to the revised petition and summary on January 25. He again rejected relators’ submission, stating that “[t]he title ‘Ohio Voters Bill of Rights’ does not fairly or accurately summarize or describe the actual content of the proposed amendment.” Though acknowledging that the attorney general‘s office “has not always rigorously evaluated” a petition‘s title in the past, the attorney general stated that this court‘s recent decision in State ex rel. Hildreth v. LaRose, 2023-Ohio-3667, had confirmed that the title of a ballot initiative is material to voters.1 The attorney general also acknowledged that the office had prеviously certified petitions with “Bill of Rights” in the proposed amendments’ titles—specifically, the “Nursing Facility Patients’ Bill of Rights” in 2021 and “The Ohio Voters Bill of Rights” in 2014. But, the attorney general stated, the past practice as to those proposed amendments was not dispositive of the question whether relators’ petition title “fairly or accurately summarize[d] or describe[d] the actual content of the proposed amendment,” because the attorney general‘s office in those previous instances “did not undertake to determine whether the title itself [was] a ‘fair and truthful statement‘” under
{¶ 9} The attorney general then explained his reasons for concluding that the title “Ohio Voters Bill of Rights” was not a fair or truthful description of the
proposed constitutional amendment. The attorney general identified two problems with the title. First, he opined that the title does not “fairly or truthfully summarize or describe the actual cоntent of the proposed amendment, which confers discretion on government officials.” The attorney general maintained that purely discretionary acts do not create any “legitimate claim of entitlement” that could be characterized as establishing a “right.” And he found that even though the proposed amendment did contain some provisions that “define[d]” rights for Ohio voters, it also “contain[ed] provisions that [could not] properly be described as creating a right for Ohio voters at all” because the implementation of those provisions was subject to the discretion of local election authorities. “Any single such example” of a provision that failed to create an enforceable right, the attorney general asserted, rendered the title misleading.
{¶ 10} Second, the attorney general opined that a “bill of rights” is ordinarily understood to be “an articulation of specific,
{¶ 11} Other than the title, the attorney general did not identify any part of the summary that was defective. “[W]ithout reaching the balance of the summary,” the attorney general stated, ”[t]he highly misleading and misrepresentative title of this amendment is sufficient on its own to reject this petition.” (Boldface and italics in original.)
{¶ 12} Relators commenced this original action in mandamus on February 1, 2024, invoking this court‘s jurisdiction under
that
II. ANALYSIS
{¶ 13} To be entitled to a writ of mandamus, relators must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the attorney general to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Husted v. Brunner, 2009-Ohio-4805, ¶ 11. In this case, relators lack аn adequate remedy in the ordinary course of the law to challenge the attorney general‘s decision whether to certify their summary under
A. Scope of Attorney General‘s Review of the Summary
{¶ 14} The outcome of this case turns on whether the attorney general has the statutory authority to review a title of a proposed constitutional amendment in the exercise of his duty under
{¶ 15} The attorney general‘s authority under
{¶ 16} Relators argue that we “need look no further than the plain text of [
{¶ 17} The attorney general relies on a plain-language reading of
1. “Ohio Voters Bill of Rights” Is the Title of the Proposed Amendment
{¶ 18} As an initial matter, we reject the attorney general‘s characterization of “Ohio Voters Bill of Rights” as the title of the summary, as opрosed to the title of the proposed constitutional amendment. The attorney general‘s framing of the issue is at odds with the format of the petition as well as the rationale he initially gave for rejecting it.
{¶ 19} As shown below, the January 16, 2024 petition submitted to the attorney general listed the title and summary as separate headings at the top of the first page:
PETITION
To the Attorney General of Ohio: Pursuant to Ohio Revised Code § 3519.01(A), the undersigned electors of the State of Ohio, numbering in excess of one thousand, hereby submit to you the full text of a proposed Amendment to the Ohio Constitution and a summary of the same.
TITLE
Ohio Voters Bill of Rights
SUMMARY
The proposed Amendment would amend Article V, Sections 1, 2, and 6 of the Ohio Constitution by adding new provisions and repealing some existing provisions.
Specifically, the Amendment would:
{¶ 20} Moreover, before this litigation commenced, the attorney general‘s rationale fоr rejecting relators’ proposed summary reflected his understanding that he was evaluating “Ohio Voters Bill of Rights” as relators’ title of the amendment itself. In his letter rejecting the petition at issue in this case, the attorney general stated that the “highly misleading and misrepresentative title of this amendment” was a sufficient reason for his decision. (Emphasis added.) Thus, the attorney general understood “Ohio Voters Bill of Rights” to be relators’ title of the proposed amendment and not the title of the summary.
{¶ 21} In addition, in explaining his reasons for rejecting relators’ summary because of its title, the attorney general acknоwledged that in the past, the attorney general‘s office had “not always rigorously evaluated whether the title fairly or truthfully summarized a given proposed amendment.” However, the attorney general opined that the office‘s past practice of accepting titles similar to the one relators had proposed did not mean that he could not review the title “Ohio Voters Bill of Rights” in this case:
Indeed, in our time of heightened polarization and partisanship, whether the title of a proposed amendment fairly or truthfully summarizes the proposal takes on even greater importance to voters asked to sign a petition. Thus, while examples of past practice from this Office may be relevant, see, e.g., Nursing Facility Patients’ Bill of Rights (2021); The Ohio Voters Bill of Rights (2014), they cannot be dispositive because they did not undertake to determine whether the title itself is a “fair and truthful statement.”
(Emphasis added.) The attorney general went on to explain his reasons for concluding that “the title ‘Ohio Voters Bill of Rights’ does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” (Emphasis added.) Thus, it is evident from the attorney general‘s own statement rejecting the petition that he regarded “Ohio Voters Bill of Rights” as the title of the amendment and not the title of the summary.
{¶ 22} Accordingly, the outcome of this case turns on whether the attorney general‘s authority to examine the summary of a proposed constitutional amendment under
2. Whether the Authority to Review the “Summary” Extends to the “Title”
{¶ 23} As explained above, relators contend that
{¶ 24} The attorney general‘s argument relies on the premise that a title is part of the summary, but his argument overlooks that the use of different words signals a difference in meaning. Seе Obetz v. McClain, 2021-Ohio-1706, ¶ 21. Guided by
{¶ 25} The definition of “title” is different from the definition of “summary.” In the sense relevant here, “title” is defined as “a descriptive or general heading (as of a chapter in a book)” or “the heading which names an act or statute.” Webster‘s Third New International Dictionary (2002).
{¶ 26} Based on these words’ ordinary meanings, a “summary” and a “title” are different things that serve different purposes. A summary is an abbreviated description of a larger body of work: in the context of a proposed constitutional amendment, the summary provides a short statement of the proposed amendment‘s main points. In contrast, the title of a proposed amendment is simply the name ascribed to it. Indeed, in recognition of the differences between these two words, we have rejected challenges to a title on the basis that it lacks the detail of a summary. See State ex rel. Citizens Not Politicians v. Ohio Ballot Bd., 2024-Ohio-4547, ¶ 81 (rejecting a challenge tо a proposed constitutional amendment‘s ballot title on the basis that it ignored certain features of the amendment; adopting such an argument “would risk turning the ballot title into a ballot summary“); State ex rel. Gil-Llamas v. Hardin, 2021-Ohio-1508, ¶ 28 (rejecting an argument that the “title” of an initiative petition was deficient under a city charter because it “[did] not fully capture every facet of the proposed ordinance“; the city charter “require[d] a title, not a summary“).
{¶ 27} Given the different meanings of “summary” and “title,” we need go no further than the plain text of
{¶ 28} The attorney general‘s textual arguments to the contrary are unpersuasive. He argues that
{¶ 29} The first problem with the attorney general‘s argument is that it adds words to the statutory language.
{¶ 31} Relevant here is
If the measure to be submitted proposes a constitutional amendment, the heading of each part of the petition shall be prepared in the following form, and printed in capital letters in type of the approximate size set forth:
“INITIATIVE PETITION
Amendment to the Constitution
Proposed by Initiative Petition
To be submitted directly to the electors”
“Amendment” printed in fourteen-point boldface type shall precede the title, which shall be briefly expressed and printed in eight-point type. The summary shall then be set forth printed in ten-point type, and then shall follow the certification of the attorney general, under proper date, which shall also be printed in ten-point type. The petition shall then set forth the names and addresses of the committee of not less than three nor more than five to represent the petitioners in all matters relating to the petition or its circulation.
(Emphasis added.)
{¶ 32} The attorney general contends that
{¶ 33} We find the attorney general‘s argument unpersuasive. The General Assembly is presumed “to know the meaning of words, to have used the words of a statute advisedly and to have expressed legislative intent by the use of
{¶ 34} Under
B. Attorney General‘s Interpretation and Statutory-Purpose Argument
{¶ 35} The attorney general also argues that this court‘s interpretation of
{¶ 36} The attorney general raises a significant point that if a “title” is not reviewable as part of the “summary” under
{¶ 37} The inclusion of the word “title” in
C. Remedy
{¶ 38} Relators seek a writ of mandamus that would compel the attorney general “to certify the proposed constitutional amendment‘s summary as a fair and
{¶ 39} Relators’ requested relief is not appropriate. For the reasons explained above, the attorney general erred in refusing to certify the proposed constitutional amendment based solely on his conclusion that the title was invalid. However, the attorney general has made clear that he did not review the summary to determine whether it fairly and truthfully summarizes the рroposed amendment; he reviewed only the title. Under
{¶ 40} Relators rely on our decision in Barren, 51 Ohio St.2d 169, in requesting their preferred relief, but that case does not help them. In Barren, a referendum petition and summary were presented to the attorney general for certification under
{¶ 41} This case presents a different issue and evidentiаry record. Unlike in Barren, the attorney general in this case has stated unequivocally that he has not reviewed the petition summary for its fairness and truthfulness under
{¶ 42} A proper remedy here is a limited writ of mandamus ordering the attorney general to perform his statutory certification responsibility. Since the attorney general does not appear to have reviewed relators’ summary for its fairness and truthfulness under
III. CONCLUSION
{¶ 43} For the foregoing reasons, we grant a limited writ of mandamus ordering the attоrney general to, within ten days, examine the summary of relators’ proposed constitutional amendment, determine whether the summary is a fair and truthful statement of the proposed amendment, and, if so, certify and forward the submitted petition to the Ohio Ballot Board.
Limited writ granted.
McTigue & Colombo, L.L.C., and Donald J. McTigue; and Elias Law Group L.L.P., Ben Stafford, Jyoti Jasrasaria, and Qizhou Ge, for relators.
Dave Yost, Attorney General, and Byers B. Emmerling, Julie M. Pfeiffer, Ann Yackshaw, and Stephen P. Tabatowski, Assistant Attorneys General, for respondent.