[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections, Slip Opinion No. 2018-Ohio-1602.]




                                           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. 2018-OHIO-1602
 THE STATE EX REL. KHUMPRAKOB ET AL. v. MAHONING COUNTY BOARD OF
                                     ELECTIONS ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections,
                          Slip Opinion No. 2018-Ohio-1602.]
Mandamus—County board of elections abused its discretion in finding that
        proposed charter amendment exceeds city’s legislative power—Writ
        compelling board to place proposed amendment on May 2018 ballot
        granted.
      (No. 2018-0404—Submitted April 12, 2018—Decided April 24, 2018.)
                                       IN MANDAMUS.
                                    ________________
                               SUPREME COURT OF OHIO




        Per Curiam.
        {¶ 1} In this case, relators, four Youngstown electors,1 seek a writ of
mandamus to compel respondents, the Mahoning County Board of Elections and
its members (collectively, “the board”), to place a proposed amendment to the
Youngstown city charter—a so-called “Youngstown Drinking Water Protection
Bill of Rights”—on the May 2018 ballot. The proposed charter amendment, if
adopted by Youngtown’s electors, would in general terms (1) recognize certain
rights of Youngstown residents and of “ecosystems and natural communities within
the city” to “clean water, air, and soil” and to be free from certain fossil-fuel drilling
and extraction activities, (2) require the city to prosecute violations of the
amendment and allow the city to recover attorney fees and expert costs incurred in
prosecuting violations, (3) impose strict liability on any government or corporation
that violates the rights established by the amendment, (4) restrict the use of funds
allocated to the city’s water and sewer infrastructure, and (5) give the people of
Youngstown the right “to compel their governments to protect their rights, health,
and safety.”
        {¶ 2} On February 12, 2018, the committee formed to have the measure
placed on the ballot submitted its part-petitions to the Youngstown city clerk. After
the board certified a sufficient number of valid signatures to qualify the measure
for the ballot, the Youngstown City Council passed an ordinance instructing the
board to place the proposed charter amendment on the May 2018 ballot. But the
board, finding that the proposed amendment “contains provisions that are beyond
the scope of the City of Youngstown’s power” to enact, voted not to place the
proposed amendment on the ballot.
        {¶ 3} On March 16, relators filed this original action for a writ of mandamus
to compel the board to place the proposed charter amendment on the ballot.

1
 The four named relators are Mary C. Khumprakob, Hattie Wilkins, Lynn Anderson, and Susan L.
Beiersdorfer.




                                             2
                                 January Term, 2018




        {¶ 4} To be entitled to a writ of mandamus, relators must prove, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the board to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. When we review a decision of a
county board of elections, the standard is whether the elections board engaged in
fraud or corruption, abused its discretion, or acted in clear disregard of applicable
legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 147 Ohio
St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.
        {¶ 5} We addressed a similar issue last year in State ex rel. Flak v. Betras,
___ Ohio St.3d ___, 2017-Ohio-8109, ___ N.E.3d ___, which involved an earlier
version of the Youngstown Drinking Water Protection Bill of Rights. Like the
current proposal, the version at issue in Flak would have given Youngstown
residents and the “ ‘ecosystems and natural communities within the city’ ” the right
to “ ‘clean water, air, and soil’ ” and to be free from certain fossil-fuel drilling and
extraction activities. Id. at ¶ 4, quoting the proposed charter amendment at issue in
that case. The former proposal also would have authorized “private citizens to
enforce their rights through nonviolent direct action or by filing suit as a private
attorney general.” Id.
        {¶ 6} In Flak, applying our caselaw that preceded the enactment of 2016
Sub.H.B. No. 463, we examined whether the board had abused its discretion in
determining that the measure was outside the municipality’s legislative authority.
See Flak at ¶ 9, 17. We agreed with the board’s determination that a municipality
lacks legislative power to authorize Youngstown residents to file suit as a “private
attorney general,” because a municipality cannot create a new cause of action. Id. at
¶ 15-16.
        {¶ 7} Significantly, the offending provision in Flak is not included in the
proposed charter amendment now before us, and the board offers no clear support for




                                           3
                             SUPREME COURT OF OHIO




its conclusion that relators’ current proposal is beyond the scope of the city’s
legislative power. The hearing transcript reveals that two members of the board
decided this matter on the basis of Flak, but there was no creation of a private right
of action—an “individual’s right to sue in a personal capacity to enforce a legal
claim,” Black’s Law Dictionary 1520 (10th Ed.2014)—in this case.
       {¶ 8} A municipality retains the ability to “make the violation of any of its
ordinances a misdemeanor, and provide for the punishment thereof by fine or
imprisonment, or both.”      R.C. 715.67.     The proposed charter amendment’s
requirement that the city prosecute violations of the amendment committed by
corporations and its establishment of a strict-liability mens rea for violations may
become elements of future ordinances. But as presented to the board, the proposed
amendment’s provisions are vague and largely aspirational. They do nothing without
further legislative action by the city. Thus, although the proposed amendment would
not necessarily be constitutional or legally enforceable if enacted, the board abused
its discretion in finding that the measure exceeds Youngstown’s legislative power.
       {¶ 9} We hold that relators have a clear legal right to have their proposal
placed on the ballot and that the board has a clear legal duty to provide that relief.
Also, because relators could not have challenged the board’s action until the board
voted to exclude the proposed measure from the ballot, we hold that relators lack
an adequate remedy in the ordinary course of the law.
                                                                        Writ granted.
       O’CONNOR, C.J., and KENNEDY, DEWINE, and DEGENARO, JJ., concur.
       FISCHER, J., concurs in judgment only, with an opinion.
       FRENCH, J., dissents, with an opinion joined by O’DONNELL, J.
                                 _________________
       FISCHER, J., concurring in judgment only.
       {¶ 10} I write separately to make clear my reasons for agreeing with this
court’s judgment in this case.



                                          4
                                  January Term, 2018




        {¶ 11} Last year, this court held that respondents, the Mahoning County
Board of Elections and its members (collectively, “the board”), did not violate a
clear legal duty when they excluded a “Youngstown Drinking Water Protection Bill
of Rights” from the November 2017 ballot. State ex rel. Flak v. Betras, ___ Ohio
St.3d ___, 2017-Ohio-8109, ___ N.E.3d ___, ¶ 16, citing State ex rel. Sensible
Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio St.3d 176, 2016-Ohio-5919,
69 N.E.3d 696. In denying a writ of mandamus, the court held, as it had previously,
that a county board of elections has authority, under R.C. 3501.11(K)(1), “ ‘to
determine whether a ballot measure falls within the scope of the constitutional
power of referendum or initiative.’ ” Id. at ¶ 11, quoting State ex rel. Youngstown
v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d
1229, ¶ 9. The court determined that the board had not abused its discretion in
exercising that authority. Id. at ¶ 9, 18.
        {¶ 12} This case presents an opportunity for us to reexamine this court’s
prior interpretation of R.C. 3501.11(K)(1), to determine whether that interpretation
is inconsistent with the separation-of-powers doctrine. I would conclude that it is
and would overrule Youngstown, Sensible Norwood, and Flak to the extent that they
construe R.C. 3501.11(K)(1) as authorizing and requiring boards of elections to
determine whether a proposed measure exceeds a municipality’s legislative power.
I also would hold that certain provisions enacted through 2016 Sub.H.B. No. 463
(“H.B. 463”) are unconstitutional to the extent that they purport to grant that
authority to boards of elections.
        {¶ 13} The Youngstown city charter provides that proposed amendments to
the charter must be submitted to the city’s electors “in the manner provided by the
Constitution and laws of the State of Ohio.” Youngstown Charter 120. Municipal
electors have a constitutional right to initiate, by petition, a proposed amendment
to their municipality’s charter. State ex rel. Beard v. Hardin, ___ Ohio St.3d ___,
2018-Ohio-1286, ___ N.E.3d ___, ¶ 20 (lead opinion), citing Ohio Constitution,




                                             5
                              SUPREME COURT OF OHIO




Article XVIII, Sections 9 and 14. “When a sufficient number of electors sign the
petition, the municipality’s legislative authority, by ordinance, shall submit the
proposal to the electorate.” Id., citing Ohio Constitution, Article XVIII, Sections 8
and 9.
         {¶ 14} Relators, four Youngstown electors, argue that they have a clear right
to have their proposed charter amendment placed on the ballot because their petition
satisfies the signature requirement and Youngstown City Council passed an
ordinance calling for placement of the measure on the ballot. They contend that R.C.
731.28 gives the board only a ministerial role, with no authority to exclude a measure
from the ballot for substantive legal reasons. Also, relying on the separation-of-
powers doctrine and State ex rel. Espen v. Wood Cty. Bd. of Elections, ___ Ohio St.3d
___, 2017-Ohio-8223, ___ N.E.3d ___ (lead opinion), relators argue that the board
lacks constitutional authority to decide substantive legal questions. They assert that
recent statutory amendments enacted through H.B. 463, which purport to authorize
and require boards of elections to make certain legal determinations, are
unconstitutional.
         {¶ 15} Espen does not resolve this case because the lead opinion in that case,
joined by only three justices, did not articulate a holding of this court. But relators’
argument that we should overrule this court’s earlier caselaw and declare aspects of
H.B. 463 unconstitutional for being inconsistent with the separation-of-powers
doctrine is nevertheless convincing.
         {¶ 16} In Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, paragraph one of the syllabus, we identified three questions
that help determine whether to overrule a prior decision: First, was the earlier
decision wrongly decided at that time, or do changes in circumstances no longer
justify continued adherence to the decision? Second, does the decision defy
practical workability? And third, would abandoning the precedent create an undue
hardship for those who have relied on it?



                                           6
                               January Term, 2018




       {¶ 17} First, I believe that Youngstown, Sensible Norwood, and Flak were
wrongly decided at the time. In Youngstown, this court considered whether the board
abused its discretion in excluding from the ballot a proposed amendment to the
Youngstown city charter that would have made it unlawful within the city to extract
oil and gas through hydrofracturing. 144 Ohio St.3d 239, 2015-Ohio-3761, 41
N.E.3d 1229. In that case, the board had sought to apply State ex rel. Morrison v.
Beck Energy Corp., 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, ¶ 34 (lead
opinion), which concluded that the Home Rule Amendment, Ohio Constitution,
Article XVIII, Section 3, does not allow a municipality to enact an ordinance that
impedes or obstructs oil-and-gas-production operations that the state has permitted
under R.C. Chapter 1509. Youngstown at ¶ 4.
       {¶ 18} In Youngstown, the court considered the extent of the board’s
authority to substantively review a proposed ballot measure under former R.C.
3501.11(K) (now R.C. 3501.11(K)(1)), which grants boards of elections authority
to “[r]eview, examine, and certify the sufficiency and validity of petitions.” The
court concluded that this statutory authority “empowers a board of elections to
determine whether a ballot measure falls within the scope of the constitutional
power of referendum or initiative.” Youngstown at ¶ 9. But the court held that
boards of elections “do not have authority to sit as arbiters of the legality or
constitutionality of a ballot measure’s substantive terms.” (Emphasis sic.) Id. at
¶ 11. The court explained:


       An unconstitutional amendment may be a proper item for
       referendum or initiative. Such an amendment becomes void and
       unenforceable only when declared unconstitutional by a court of
       competent jurisdiction. Any other conclusion would authorize a
       board of elections to adjudicate a constitutional question and require
       this court to affirm its decision even if the court disagreed with the




                                         7
                              SUPREME COURT OF OHIO




       board’s conclusion on the underlying constitutional question, so
       long as the board had not abused its discretion.


Id. Because the board had expressly excluded the ballot measure based on its view
that the measure would be unconstitutional if enacted, the court granted a writ of
mandamus compelling the board to place the measure on the ballot. Id. at ¶ 12.
       {¶ 19} A year later, in Sensible Norwood, this court again considered the
extent of a board of elections’ authority under former R.C. 3501.11(K) to exclude
a municipal initiative from the ballot. 148 Ohio St.3d 176, 2016-Ohio-5919, 69
N.E.3d 696, at ¶ 6. Sensible Norwood involved a proposed municipal ordinance
that, among other things, would have made the possession of marijuana a fifth-
degree felony. Id. at ¶ 11. The court cited Article II, Section 1f of the Ohio
Constitution, id. at ¶ 9, which reserves to municipal electors the right to submit
questions by initiative petition but limits that right only to questions “municipalities
may now or hereafter be authorized by law to control by legislative action.” The
court held that because a municipality lacks authority to define a felony, the
proposed ordinance was “beyond the scope of a municipality’s authority to enact.”
Id. at ¶ 10, 22. Thus, although the court did not cite Youngstown in Sensible
Norwood, it applied the distinction the earlier decision had recognized—that a
board of elections has authority to exclude a ballot measure based on its
determination that the measure is beyond the scope of the municipality’s power to
enact, but it lacks authority to exclude a measure based on its determination that
the measure would be unconstitutional if enacted.
       {¶ 20} Through H.B. 463, effective April 6, 2017, the General Assembly
enacted changes relevant to an elections board’s authority and duty to review a
proposed ballot measure’s substantive terms.
       {¶ 21} The act added R.C. 3501.11(K)(2), which provides that a board of
elections shall



                                           8
                                 January Term, 2018




       [e]xamine each initiative petition, or a petition filed under section
       307.94 or 307.95 of the Revised Code, received by the board to
       determine whether the petition falls within the scope of authority to
       enact via initiative and whether the petition satisfies the statutory
       prerequisites to place the issue on the ballot, as described in division
       (M) of section 3501.38 of the Revised Code. The petition shall be
       invalid if any portion of the petition is not within the initiative
       power.


Before the amendment, as noted in Youngstown and Sensible Norwood, former R.C.
3501.11(K) simply had required a board of elections to “[r]eview, examine, and
certify the sufficiency and validity of petitions and nomination papers, and, after
certification, return to the secretary of state all petitions and nomination papers that
the secretary of state forwarded to the board.” 2013 Am.Sub.H.B. No. 109. H.B.
463 retained that language, recodifying it as R.C. 3501.11(K)(1).
       {¶ 22} H.B. 463 also added R.C. 3501.38(M), which R.C. 3501.11(K)(2)
cross-references. Relevant here is R.C. 3501.38(M)(1)(a), which requires a board
of elections, upon receiving a municipal initiative petition, to examine the petition
to determine


       [w]hether the petition falls within the scope of a municipal political
       subdivision’s authority to enact via initiative, including, if
       applicable, the limitations placed by Sections 3 and 7 of Article
       XVIII of the Ohio Constitution on the authority of municipal
       corporations to adopt local police, sanitary, and other similar
       regulations as are not in conflict with general laws, and whether the
       petition satisfies the statutory prerequisites to place the issue on the




                                           9
                             SUPREME COURT OF OHIO




       ballot. The petition shall be invalid if any portion of the petition is
       not within the initiative power.


       {¶ 23} Finally, H.B. 463 amended R.C. 3501.39(A), which now provides:


       [A] board of elections shall accept any petition described in section
       3501.38 of the Revised Code unless one of the following occurs:
               ***
               (3) In the case of an initiative petition received by the board
       of elections, the petition falls outside the scope of authority to enact
       via initiative or does not satisfy the statutory prerequisites to place
       the issue on the ballot, as described in division (M) of section
       3501.38 of the Revised Code. The petition shall be invalid if any
       portion of the petition is not within the initiative power.


       {¶ 24} In October 2017, we considered two cases involving municipal
initiatives in which aspects of these H.B. 463 amendments were challenged as
unconstitutional. First, in Flak, ___ Ohio St.3d ___, 2017-Ohio-8109, ___ N.E.3d
___, we considered whether the board abused its discretion in excluding from the
ballot an earlier version of the Youngstown Drinking Water Protection Bill of
Rights. The majority opinion in Flak emphasized that under the plain language of
the Home Rule Amendment and Ohio Constitution, Article II, Section 1f, municipal
electors’ initiative power is limited only to matters that constitute permissible
municipal legislative action. Id. at ¶ 10. The court then reaffirmed its prior holding
that an elections board’s statutory authority to “[r]eview, examine, and certify the
sufficiency and validity of petitions,” R.C. 3501.11(K)(1) (formerly R.C.
3501.11(K)), empowers an elections board “ ‘to determine whether a ballot measure
falls within the scope of the constitutional power of referendum or initiative.’ ” Id.



                                          10
                                January Term, 2018




at ¶ 11, quoting Youngstown, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229,
at ¶ 9. The court concluded that the board did not abuse its discretion in exercising
that authority because the proposal at issue would have exceeded Youngstown’s
legislative power by creating a new cause of action allowing citizens to enforce their
rights “through nonviolent direct action or by filing suit as a private attorney
general.” Id. at ¶ 4, 15-16.
        {¶ 25} Less than two weeks later, we decided Espen, ___ Ohio St.3d ___,
2017-Ohio-8223, ___ N.E.3d ___, another case involving the scope of an elections
board’s authority to determine substantive legal questions. In Espen, a board of
elections voted to place a proposed city-charter amendment on the ballot and later
overruled a protester’s argument that the measure included provisions that exceed
the municipality’s power to enact. Id. at ¶ 2-3, 10-12. We denied writs of
mandamus and prohibition, thus allowing the measure to remain on the ballot. See
id. at ¶ 25. The lead opinion in Espen concluded that R.C. 3501.38(M)(1)(a)
violates the separation-of-powers doctrine to the extent that it “authorizes and
requires boards of elections to make substantive, preenactment legal evaluations.”
Id. at ¶ 15.
        {¶ 26} In Youngstown, Sensible Norwood, and Flak, this court construed
R.C. 3501.11(K)(1) (formerly R.C. 3501.11(K)), which requires elections boards to
“[r]eview, examine, and certify the sufficiency and validity of petitions,” as
authorizing elections boards to determine whether a ballot measure exceeds a
municipality’s legislative power. Flak at ¶ 11; Sensible Norwood, 148 Ohio St.3d
176, 2016-Ohio-5919, 69 N.E.3d 696, at ¶ 6; Youngstown at ¶ 9. But those decisions
do not show why the statutory language compels that conclusion. I believe that the
court’s prior construction of R.C. 3501.11(K)(1) in those cases is inconsistent with
the separation-of-powers doctrine.
        {¶ 27} “The separation-of-powers doctrine represents the constitutional
diffusion of power within our tripartite government. The doctrine was a deliberate




                                         11
                              SUPREME COURT OF OHIO




design to secure liberty by simultaneously fostering autonomy and comity, as well
as interdependence and independence, among the three branches.” Norwood v.
Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114. The
doctrine is “implicitly embedded in the entire framework of those sections of the
Ohio Constitution that define the substance and scope of powers granted to the three
branches of state government.” S. Euclid v. Jemison, 28 Ohio St.3d 157, 159, 503
N.E.2d 136 (1986). The separation of powers is designed to prevent a primary and
intrinsic threat: the concentration of power in a single branch of government. See
The Federalist No. 47 at 313 (Cosimo Ed.2006).
       {¶ 28} Relators, through their initiative petition, seek to exercise municipal
legislative power. Their authority to exercise that power arises from two provisions
in the Ohio Constitution: Article XVIII, Section 3 authorizes municipalities “to
exercise all powers of local self-government and to adopt and enforce within their
limits such local police, sanitary and other similar regulations, as are not in conflict
with general laws,” and Article II, Section 1f “reserve[s] to the people” the power
to initiate measures “on all questions which * * * municipalities may now or
hereafter be authorized by law to control by legislative action.” As the court
recognized in Flak, the language of Article II, Section 1f limits the permissible
subject matter of a municipal initiative petition. ___ Ohio St.3d ___, 2017-Ohio-
8109, ___ N.E.3d ___, at ¶ 10.
       {¶ 29} The primary question here is who decides that a measure initiated by
electors exceeds a municipality’s legislative power. To answer that question, it is
important first to understand the nature of the decision that was made here. In this
case, the board excluded relators’ measure from the ballot, concluding that it was
“beyond the scope of the City of Youngstown’s power” to enact legislation. In its
brief, the board further explains its view that “municipalities have no authority to act
in areas that are reserved to the General Assembly or to the courts” and that
“[m]unicipalities may not act in areas reserved to the power and authority of the



                                          12
                                January Term, 2018




state.” The board argues, in essence, that it has authority to determine whether state
law preempts local law in certain areas.
       {¶ 30} Significantly, our home-rule jurisprudence has rejected the idea of
general subject-area preemption. A municipality’s powers under the Home Rule
Amendment are the “broadest possible powers of self-government in connection with
all matters which are strictly local.” State ex rel. Hackley v. Edmonds, 150 Ohio St.
203, 212, 80 N.E.2d 769 (1948). Municipal legislative power is limited first by other
constitutional provisions, Buckeye Community Hope Found. v. Cuyahoga Falls, 82
Ohio St.3d 539, 541-542, 697 N.E.2d 181 (1998), and second by general state laws
that conflict with local provisions, Am. Fin. Servs. Assn. v. Cleveland, 112 Ohio St.3d
170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 31. In the absence of either a separate
constitutional restriction on municipal power or a direct conflict with a general state
law, a local ordinance is not preempted. See State ex rel. Rocky Ridge Dev., L.L.C.
v. Winters, 151 Ohio St.3d 39, 2017-Ohio-7678, 85 N.E.3d 717, ¶ 13, citing
Morrison, 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, at ¶ 24. Thus, in
view of our home-rule jurisprudence, the H.B. 463 amendments discussed above
purport to authorize elections boards to make legal determinations about subject-
area preemption that even courts cannot make.
       {¶ 31} In this light, it is apparent that our interpretation of R.C.
3501.11(K)(1) in Youngstown, Sensible Norwood, and Flak has facilitated the
violation of the separation-of-powers doctrine, which is intended to uphold the
“power and duty of the judiciary to determine the constitutionality and, therefore,
the validity of the acts of the other branches of government,” State ex rel. Ohio
Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 462, 715 N.E.2d 1062
(1999); see also Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115,
at ¶ 117 (“the judicial power resides exclusively in the judicial branch”). By
interpreting R.C. 3501.11(K)(1) as empowering elections boards to determine
whether a proposed ballot measure exceeds a municipality’s legislative power, this




                                           13
                                SUPREME COURT OF OHIO




court has authorized elections boards to make substantive, preenactment legal
evaluations.
       {¶ 32} But that is not the only separation-of-powers problem presented in
this case. In addition to exercising judicial power, the board also has become
involved in the legislative process. While the primary question here is who decides
that proposed legislation exceeds municipal legislative power, the secondary
question is when that decision is made. By making a substantive, preenactment
legal evaluation of proposed municipal legislation, the board has interfered with the
legislative process, too.
       {¶ 33} We have long held that courts lack authority to judge the legality of
proposed legislation. See Pfeifer v. Graves, 88 Ohio St. 473, 104 N.E. 529 (1913),
paragraph five of the syllabus. Just as we cannot stop the General Assembly from
considering a proposed law, we cannot allow an elections board to interfere in the
legislative process initiated by the people. After all, the electorate’s legislative
power is more basic than the legislative power exercised by the legislative branch
of government: legislative power is reserved to the people but delegated to the
General Assembly and municipalities. Ohio Constitution, Article II, Sections 1 and
1f; Article XVIII, Section 3.
       {¶ 34} “[T]he judicial function does not begin until after the legislative
process is completed.” Ohio Academy of Trial Lawyers, 86 Ohio St.3d at 462, 715
N.E.2d 1062. That is why a court may not exercise judicial power to interfere with
the legislative process. An arm of the executive branch cannot be allowed to wield
judicial power to interfere with the legislative process either. To be sure, this court
has the ultimate authority of judicial review over the board’s decision in this
mandamus action. But that does not solve the separation-of-powers problem here:
it only places this court in a position it should not be in—judging the legality of
proposed legislation before it has been enacted.




                                          14
                                January Term, 2018




       {¶ 35} I additionally note that authorizing elections boards to make
substantive, preenactment legal evaluations raises questions about the proper
standard of review. We have typically deferred to elections boards’ determinations
absent fraud or corruption, abuse of discretion, or clear disregard of the law. See
State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016-
Ohio-5880, 67 N.E.3d 759, ¶ 9. But we have also stated that “we need accord no
deference to a board of elections’ interpretation of state election law.” State ex rel.
McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758,
835 N.E.2d 336, ¶ 30, fn. 2. If we truly do apply a deferential abuse-of-discretion
standard in these cases, we are ultimately relinquishing some authority in favor of
boards of elections and facilitating inconsistent results among various boards of
elections.
       {¶ 36} Therefore, I would answer the first Galatis question in the
affirmative: Youngstown, Sensible Norwood, and Flak were wrongly decided to the
extent that they allowed boards of elections to decide whether a proposed municipal
ballot measure exceeds a municipality’s legislative power.
       {¶ 37} I would also conclude that Youngstown, Sensible Norwood, and Flak
defy practical workability. As discussed above, in Youngstown, Sensible Norwood,
and Flak, this court held that under R.C. 3501.11(K)(1) (formerly R.C.
3501.11(K)), elections boards have authority to decide whether a municipality lacks
the power to enact a measure but not to decide whether a measure would be
unconstitutional if enacted. See, e.g., Youngstown, 144 Ohio St.3d 239, 2015-Ohio-
3761, 41 N.E.3d 1229, at ¶ 8-11. In upholding this distinction in Flak, the court
acknowledged that


       it is sometimes difficult to distinguish between a provision that a
       municipality is not authorized to adopt by legislative action
       (something an elections board may determine * * *) and one that is




                                          15
                             SUPREME COURT OF OHIO




       simply unconstitutional (something an elections board may not
       determine, per Youngstown * * *). But that is the line our caselaw
       has drawn.


Flak, __ Ohio St.3d __, 2017-Ohio-8109, __ N.E.3d __, at ¶ 14. I previously
characterized the distinction as “unnecessarily confusing,” “without meaning,” and
“unworkable.” State ex rel. McGinn v. Walker, 151 Ohio St.3d 199, 2017-Ohio-
7714, 87 N.E.3d 204, ¶ 34, 36 (Fischer, J., dissenting).
       {¶ 38} Questions on both sides of the distinction can present home-rule
issues, but there is no clear reason why elections boards have been allowed to
decide questions on one side but not questions on the other. For example, in
Youngstown, the question was whether the board could exclude a ballot measure
based on its concern that the proposal was unconstitutional under Morrison, a case
involving questions of municipal power under the Home Rule Amendment.
Youngstown at ¶ 4. The question in Morrison had been whether a local ordinance
conflicted with a general state law. 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d
128, at ¶ 24. The court held in Youngstown that the board lacked authority to apply
our home-rule analysis, because that is a judicial function. Youngstown at ¶ 11-12.
       {¶ 39} That conclusion is hard to reconcile with other cases, such as
Sensible Norwood and Flak, in which the elections boards framed the issue as a
scope-of-municipal-authority question, see Sensible Norwood, 148 Ohio St.3d 176,
2016-Ohio-5919, 69 N.E.3d 696, at ¶ 4; Flak at ¶ 7. Indeed, it is puzzling why an
elections board might have authority to make legal determinations about state-law
preemption (even though we have rejected the concept) but lacks authority to
determine a home-rule-conflict question (even if we have decided a case directly
on point).
       {¶ 40} Our existing caselaw on R.C. 3501.11(K)(1) has shown itself to be
unworkable in one other way: as seen in the elections boards’ decisions in Flak and



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Espen, it does not lead to consistent results among various county boards of
elections. By leaving behind the interpretation of R.C. 3501.11(K)(1) articulated
in Youngstown, Sensible Norwood, and Flak, this court not only would maintain
the separation of powers but also would ensure greater uniformity in elections board
decision-making throughout the state. Accordingly, I would answer the second
Galatis question in the affirmative.
       {¶ 41} Finally, I would answer the third Galatis question in the negative:
there is no reason why elections boards cannot decide future cases under a more
constrained scope of review without disruption or difficulty.
       {¶ 42} Accordingly, I would overrule Youngstown, Sensible Norwood, and
Flak to the extent that those decisions hold that R.C. 3501.11(K)(1) authorizes and
requires elections boards to determine whether ballot measures are within the scope
of a municipality’s power to enact legislation. And because R.C. 3501.11(K)(2),
3501.38(M)(1)(a), and 3501.39(A)(3) track the language of this court’s prior
interpretation of R.C. 3501.11(K)(1), those statutes also require boards to make
substantive legal determinations in violation of the separation-of-powers doctrine
and are unconstitutional to that extent.
       {¶ 43} In reaching this conclusion, I emphasize that this case involves an
elections board’s authority to make a substantive, preenactment legal determination
that a proposed measure exceeds a municipality’s legislative power. Because this
case does not involve other types of initiative or referendum measures, there is no
need to address them here, and I leave for the future any questions about elections-
board review in those cases.
       {¶ 44} Finally, I note that this court’s judgment in this case does not validate
the Youngstown Drinking Water Protection Bill of Rights. Indeed, even if adopted
by Youngstown’s electors, the proposal might not be constitutional or legally
enforceable, and it could be beyond the scope of Youngstown’s home-rule power. In
my view, a county elections board lacks constitutional authority to make these




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decisions. It is understandable why some may desire to keep off the ballot a proposal
such as this, with its questionable constitutionality and legality, but we must be
vigilant in guarding against the executive branch’s encroachment on the duties and
powers of other branches of government. The course I propose would prevent the
concentration of unaccountable power within county boards of elections by
protecting the legislative power reserved to the people and preserving judicial
review.
                                   _________________
          FRENCH, J., dissenting.
          {¶ 45} Respectfully, I dissent.
          {¶ 46} The question before us is whether respondents, Mahoning County
Board of Elections and its members (collectively, “the board”), abused their
discretion by refusing to certify the proposed charter amendment for placement on
the May 8, 2018 ballot based on their determination that the amendment contains
provisions that are beyond the scope of the city of Youngstown’s legislative power.
Plainly, the proposed amendment does contain provisions that are beyond the scope
of the city’s legislative power.
          {¶ 47} The proposed Section 133(a) of the charter states that the city’s
citizens hold rights to be free from activities—including, for example, the drilling
of fossil fuels—that interfere with specified rights to clean air and water. Section
133(b), if adopted, would require the city to prosecute “all violations of this
Amendment by corporations.”           Section 133(c), if adopted, would hold any
government or corporation that engaged in such activities “strictly liable for all
resulting harms.”
          {¶ 48} This court has already determined that “a municipality is not
authorized to create new causes of action.” State ex rel. Flak v. Betras, __ Ohio
St.3d __, 2017-Ohio-8109, __ N.E.3d __, ¶ 15. Because the proposed amendment




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purports to create new causes of action, I would hold that the board did not abuse
its discretion and would deny the writ.
       O’DONNELL, J., concurs in the foregoing opinion.
                               _________________
       Terry J. Lodge and Jensen Silvis, for relators.
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Sharon K.
Hackett, Linette M. Stratford, and Mark D’Apolito, Assistant Prosecuting
Attorneys, for respondents.
       Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, and Kathleen
M. Trafford; and McTigue & Colombo, L.L.C., Donald J. McTigue, and Ben F.C.
Wallace, urging denial of the writ for amici curiae Affiliated Construction Trades
Ohio Foundation, Ohio Chamber of Commerce, and American Petroleum Institute.
       Mangano Law Offices Co., L.P.A., Joseph J. Guarino III, and Ryan K.
Hymore, urging denial of the writ for amici curiae Western Reserve Building and
Construction Trades Council (Youngstown Warren Regional Chamber),
Youngstown Warren Black Caucus, Community Mobilization Coalition, and
Mahoning Trumbull AFL-CIO.
                               _________________




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