finding the Franklin County Board of Elections “did not abuse their discretion in keeping [the] proposal off the ballot” as “Columbus clearly lacks the power to enact the proposed ordinance.”
How later courts described this case
- finding the Franklin County Board of Elections “did not abuse their discretion in keeping [the] proposal off the ballot” as “Columbus clearly lacks the power to enact the proposed ordinance.”
Written by the judges who cited it.
The opinion
Fischer, J., dissenting.
*51 {¶ 21} I respectfully dissent.
{¶ 22} This court has not previously decided whether the statutory amendments introduced by 2016 Sub.H.B. No. 463 ("H.B. 463") are unconstitutional in violation of the separation-of-powers doctrine, and a majority of the court continues to avoid that question. In State ex rel. Flak v. Betras , 152 Ohio St.3d 244 , 2017-Ohio-8109 , 95 N.E.3d 329 , ¶ 17, this court specifically stated that "we leave consideration of the constitutionality of [H.B. 463] for another day." In State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections , 153 Ohio St.3d 581 , 2018-Ohio-1602 , 109 N.E.3d 1184 , I wrote an opinion concurring in judgment only in which I concluded that portions of H.B. 463 are unconstitutional and that certain pre-H.B. 463 decisions of this court had been decided in error and should be overruled. Id. at ¶ 42 (Fischer, J., concurring in judgment only). However, in Khumprakob , the majority once again declined to reach the constitutionality issue and decided that case by distinguishing Flak on a factual basis. Khumprakob at ¶ 5-9.
{¶ 23} In State ex rel. Espen v. Wood Cty. Bd. of Elections , 154 Ohio St.3d 1 , 2017-Ohio-8223 , 110 N.E.3d 1222 , which this court decided before Khumprakob but after Flak , the three justices joining the per curiam opinion agreed with the board of elections' determination that it had no authority to invalidate a charter petition based on a substantive evaluation of that petition's legality. Id. at ¶ 16. The lead opinion specifically stated that "[t]o the extent that R.C. 3501.38(M)(1)(a) authorizes and requires boards of elections to make substantive, preenactment legal evaluations, it violates the separation-of-powers doctrine and is unconstitutional." Id. at ¶ 15.
{¶ 24} The constitutionality of H.B. 463 continues to be argued before this court, and the court has not definitively settled that issue. We will eventually have to resolve that question after conducting a substantive analysis. In doing so, I believe that we will need to reexamine our pre-H.B. 463 caselaw to determine whether that line of decisions is in accord with the separation-of-powers doctrine.
{¶ 25} For these reasons, I respectfully dissent and would grant the writ of mandamus for the reasons stated in my separate opinion in Khumprakob .