State ex rel. Dudley v. Yost , 2024 Ohio 5166 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Dudley v. Yost, Slip Opinion No. 2024-Ohio-5166.]
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. 2024-OHIO-5166THE STATE EX REL . DUDLEY ET AL. v. YOST, ATTY. GEN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Dudley v. Yost, Slip Opinion No.
2024-Ohio-5166.]
Mandamus—Elections—Writ sought to direct attorney general to certify summary
of proposed constitutional amendment—Limited writ granted ordering
attorney general to examine summary of relators’ proposed amendment
under R.C. 3519.01(A).
(No. 2024-0161—Submitted September 17, 2024—Decided October 30, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
SUPREME COURT OF OHIO
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 R.C. 3519.01(A), relators submitted the text and a summary of their
proposed amendment to respondent, Ohio Attorney General Dave Yost, to obtain
his certification that their summary “is a fair and truthful statement” of their
proposed amendment, id. The attorney general did not certify relators’ summary,
because he determined that the title “Ohio Voters Bill of Rights” is not a fair and
truthful statement of the proposed amendment.
{¶ 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
R.C. 3519.01(A) extends to the summary but not to the title. But we grant only a
limited writ of mandamus ordering the attorney general to examine the summary of
relators’ proposed amendment, determine whether the summary is a fair and
truthful statement of the proposed amendment, and, if so, certify and forward
relators’ petition to the Ohio Ballot Board.
I. FACTUAL AND PROCEDURAL BACKGROUND
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 R.C. 3519.01(A),
proponents of a constitutional amendment must submit a preliminary initiative
petition and summary thereof to the attorney general. The statute does not require
the proposed amendment to have a “title” when submitted to the attorney general.
See id.2
January Term, 2024
{¶ 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 then 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.; R.C. 3505.062(A). At that point, the petition’s
circulators “may begin . . . to gather the necessary signatures to qualify for the
ballot.” State ex rel. Ohioans for Secure & Fair Elections v. LaRose, 2020-Ohio-
1459, ¶ 3; see also id. at ¶ 2-3 (summarizing the statutory process for a
constitutional amendment proposed by initiative petition).
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.
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{¶ 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 general
“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 amendment, a summary, and part-
petitions containing the signatures of more than 2,000 qualified electors. Relators
also changed the title of the proposed amendment on their petition to “Ohio Voters
Bill of Rights.” In a letter submitted with their petition, relators’ counsel noted that
although they had adopted a new title for the proposed amendment, they disputed
the attorney general’s authority to review the title.
{¶ 8} The attorney general responded 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
1. In Hildreth, we granted a writ of mandamus ordering a board of elections and the secretary of
state to sustain a protest to an initiative petition and remove the initiative from the ballot because
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January Term, 2024
previously 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 R.C. 3519.01(A). The attorney general
added that “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.”
{¶ 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 content 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”
the title of the proposed ordinance on the petitions circulated for signature was different from the
title appearing on the signed petition filed with the city auditor and presented to the board of
elections for placement on the ballot. 2023-Ohio-3667, at ¶ 1, 4, 16-20, 23. The statute at issue in
Hildreth required the petition to have a title. Id. at ¶ 15, citing R.C. 731.31.
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SUPREME COURT OF OHIO
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, discrete rights that may be
enforced by individuals against the government.” In contrast, the attorney general
explained, the proposed amendment “focuses in detail on the processes the State
uses to carry out its elections,” such as the appropriation of funds and voter
registration—matters that do not fit the ordinary definition of a “bill of rights.”
{¶ 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 that “[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 R.C. 3519.01(C).2 They contend
that R.C. 3519.01(A) does not authorize the attorney general to review the title of
a proposed constitutional amendment. Relators ask this court to issue a writ of
mandamus ordering the attorney general to certify their proposed amendment’s
summary and forward their petition to the Ohio Ballot Board. We denied the
attorney general’s motion to dismiss and granted an alternative writ, setting a
schedule for the submission of evidence and briefs. 2024-Ohio-1922.
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
2. “Any person who is aggrieved by a certification decision under [R.C. 3519.01(A)] may challenge
the certification or failure to certify of the attorney general in the supreme court, which shall have
exclusive, original jurisdiction in all challenges of those certification decisions.” R.C. 3519.01(C).
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January Term, 2024
course of the law. State ex. rel. Husted v. Brunner, 2009-Ohio-4805, ¶ 11. In this
case, relators lack an adequate remedy in the ordinary course of the law to challenge
the attorney general’s decision whether to certify their summary under R.C.
3519.01(A). See State ex rel. Barren v. Brown, 51 Ohio St.2d 169, 171 (1977)
(determining that no adequate remedy in the ordinary course of the law was
available to challenge the attorney general’s refusal to certify under R.C. 3519.01).
As to the first two elements, in extraordinary actions that challenge the decisions of
the secretary of state, the ballot board, or county boards of elections, the applicable
standard is whether they engaged in fraud, corruption, abuse of discretion or acted
in clear disregard of applicable legal provisions. Ohioans for Secure & Fair
Elections, 2020-Ohio-1459, at ¶ 14.
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 R.C. 3519.01(A). In deciding an issue of statutory
interpretation, “[t]he question is not what did the general assembly intend to enact,
but what is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio
St. 621 (1902), paragraph two of the syllabus; see also Olmsted Twp. v. Ritchie,
2023-Ohio-2516, ¶ 10. “When the statutory language is plain and unambiguous,
and conveys a clear and definite meaning, we must rely on what the General
Assembly has said.” Jones v. Action Coupling & Equip., Inc., 2003-Ohio-1099,
¶ 12. The court may neither add words to nor delete words from the statutory
language, Columbia Gas Transm. Corp. v. Levin, 2008-Ohio-511, ¶ 19, and must
give effect to all parts of a statutory scheme, see United Tel. Co. of Ohio v. Limbach,
1994-Ohio-209, ¶ 11.
{¶ 15} The attorney general’s authority under R.C. 3519.01(A) is limited to
whether the summary of a proposed law or constitutional amendment is fair and
truthful, and if it is, the attorney general must certify the summary and then forward
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the petition to the Ohio Ballot Board. Barren, 51 Ohio St.2d at 170. The statute
does not, however, define the term “summary.” This court reads undefined terms
as having their plain and ordinary meaning. Vossman v. AirNet Sys., Inc., 2020-
Ohio-872, ¶ 14.
{¶ 16} Relators argue that we “need look no further than the plain text of
[R.C.] 3519.01” to conclude that the attorney general’s authority to review the
summary of a proposed constitutional amendment does not include authority to
review the title.
{¶ 17} The attorney general relies on a plain-language reading of R.C.
3519.01 as well. He argues that his duty under R.C. 3519.01 to review the summary
of a proposed constitutional amendment extends to “the entire summary, which
includes the title.” Accordingly, the attorney general is contending that “Ohio
Voters Bill of Rights” is the title of the summary of relators’ proposed amendment
and is therefore within the scope of his statutorily required review.
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 opposed 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:
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January Term, 2024
The text appearing underneath the heading “TITLE” is “Ohio Voters Bill of
Rights.” Underneath that is the heading “SUMMARY,” which is followed by the
summary’s text. The most natural reading of the submission is that the title and the
summary are separate things. That is, relators ascribed the title “Ohio Voters Bill
of Rights” to the proposed constitutional amendment itself before then presenting
the summary of it.
{¶ 20} Moreover, before this litigation commenced, the attorney general’s
rationale for 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 acknowledged 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
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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 R.C. 3519.01(A) extends to the amendment’s title.
2. Whether the Authority to Review the “Summary” Extends to the “Title”
{¶ 23} As explained above, relators contend that R.C. 3519.01(A) grants to
the attorney general the authority to examine only the “summary” of a proposed
constitutional amendment, not the “title,” while the attorney general argues that the
plain meaning of the word “summary” includes a “title.”
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January Term, 2024
{¶ 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. See Obetz v. McClain, 2021-Ohio-1706, ¶ 21.
Guided by that principle, we begin by considering the words’ distinct definitions.
The plain and ordinary meaning of “summary” is “a short restatement of the main
points (as of an argument) for easier remembering, for better understanding, or for
showing the relation of the points.” Webster’s Third New International Dictionary
(2002). In other words, a “summary” is a condensed text that describes the contents
of the whole of something larger.
{¶ 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 to 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”).
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{¶ 27} Given the different meanings of “summary” and “title,” we need go
no further than the plain text of R.C. 3519.01(A) to determine the scope of the
attorney general’s role: the attorney general “shall conduct an examination of” only
the summary of the proposed amendment. If the attorney general’s examination
duty extended to the “title” of a proposed amendment, the General Assembly would
have expressly stated as much in R.C. 3519.01(A).
{¶ 28} The attorney general’s textual arguments to the contrary are
unpersuasive. He argues that R.C. 3519.01(A) contemplates the submission of two
items to the attorney general for his “fair and truthful” review: (1) the text of the
proposed constitutional amendment and (2) a summary of it. The title, then, the
attorney general insists, “must necessarily be part of” the summary.
{¶ 29} The first problem with the attorney general’s argument is that it adds
words to the statutory language. R.C. 3519.01(A) states: “Whoever seeks to
propose a law or constitutional amendment by initiative petition shall, by a written
petition signed by one thousand qualified electors, submit the proposed law or
constitutional amendment and a summary of it to the attorney general for
examination.” To accept the attorney general’s argument would require us to read
R.C. 3519.01(A) as saying that whoever seeks to propose a constitutional
amendment shall submit only the proposed amendment and a summary—and
nothing else. But this is not what the statute says. The summary and the text of the
amendment are mandatory but not exclusive.
{¶ 30} The second problem with the attorney general’s argument is that it
requires reading R.C. 3519.01(A) in isolation without considering the rest of the
statutory scheme governing the initiative-petition process. When construing
statutes relating to the same subject matter, a court will “consider them together to
determine the General Assembly’s intent.” State v. South, 2015-Ohio-3930, ¶ 8.
And in this case, the statutory scheme related to initiative petitions differentiates
between a “summary” and a “title.”
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January Term, 2024
{¶ 31} Relevant here is R.C. 3519.05(A), which specifies the requirements
for an initiative petition that is presented to citizens for signature after the ballot
board and the attorney general have performed their petition-certification functions.
That statute provides:
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.) R.C. 3519.05(A). Thus, in prescribing the form for initiative
petitions, the General Assembly differentiated between a “title” and a “summary,”
prescribing different requirements for each when they appear on an initiative
petition. The attorney general’s certification is required to appear below the
summary and in the same font size as the summary. Id. In contrast, the title is set
apart from the summary, appearing above it and in smaller type. Id. Moreover, the
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form of the petition prescribed by the statute requires that the attorney general’s
certification follow the text of the summary, but it does not similarly prescribe that
the attorney general’s certification follow the title. Thus, the structure and content
of the petition form suggests that the attorney general reviews the contents of only
the summary.
{¶ 32} The attorney general contends that R.C. 3519.05 is irrelevant to the
scope of his certification duty under R.C. 3519.01(A) because the two statutes
“pertain to different parts of the petition process.” Whereas R.C. 3519.01 describes
the initial phase of the petition process, the attorney general argues, R.C. 3519.05
“outlines the formal requirements for petitions during the subsequent phase,
wherein petitioners gather the signatures necessary to place the measure on the
ballot.” Based on that distinction, the attorney general surmises that R.C. 3519.05
has no impact on the meaning of R.C. 3519.01(A).
{¶ 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 the words
found in the statute; that nothing may be read into a statute which is not within the
manifest intention of the Legislature as gathered from the act itself.” Wachendorf
v. Shaver, 149 Ohio St. 231, 237 (1948). Applying that principle to the statutory
scheme at issue here, we see that within the same chapter of the Revised Code, the
General Assembly used the word “title” in one statute but not in another. Namely,
in R.C. 3519.05(A), the General Assembly distinguished between a “summary” and
a “title,” yet in R.C. 3519.01(A), it specified that the attorney general’s duty to
certify extended to only the “summary,” not to the title. “[I]f the General Assembly
could have used a particular word in a statute but did not, [this court] will not add
that word by judicial fiat.” Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2014-
Ohio-5511, ¶ 26. Accordingly, under the plain language of R.C. 3519.01(A), the
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attorney general’s certification authority extends to the summary of a proposed
constitutional amendment, not to the title of it.
{¶ 34} Under R.C. 3519.01(A), the attorney general’s certification authority
does not extend to the title of a proposed amendment that appears on a preliminary
initiative petition submitted under that provision. Accordingly, in this case, the
attorney general exceeded his statutory authority by reviewing the title of the
relators’ proposed constitutional amendment, and he did not perform his duty under
R.C. 3501.19(A) to “conduct an examination of the summary.”
B. Attorney General’s Interpretation and Statutory-Purpose Argument
{¶ 35} The attorney general also argues that this court’s interpretation of
R.C. 3519.01(A) “should be grounded in that statute’s purpose,” which is to
“ensur[e] that potential petition signers are not misled.” If the attorney general
lacks the authority to review the title as part of his duty under R.C. 3519.01(A), he
argues, then proponents of a constitutional amendment “are free to give . . . any
misleading title they choose, and that tile is unreviewable.” As an example, the
attorney general asserts that relators “could go door-to-door presenting a petition
titled ‘Every Ohioan to receive one million dollars if amendment passes’ ” even if
that is not true. He asserts that if this were the law, it would be inconsistent with
Ohio’s long history of recognizing the attorney general’s “important role” in the
initiative-petition process.
{¶ 36} The attorney general raises a significant point that if a “title” is not
reviewable as part of the “summary” under R.C. 3519.01(A), then potentially
misleading titles could be presented to potential signers of the petition. But his
argument asks this court to expand the scope of the attorney general’s “fair and
truthful” examination beyond what the General Assembly enacted. Considerations
like those raised by the attorney general are more properly addressed to the
legislature. See Johnson v. Montgomery, 2017-Ohio-7445, ¶ 15.
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{¶ 37} The inclusion of the word “title” in R.C. 3519.05(A) shows that the
General Assembly knows how to use the word “title” when it intends to do so. A
“title” is not the same thing as a “summary,” and the current statute unambiguously
tasks the attorney general with examining only the latter.
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
truthful statement of the proposed amendment and forward the petition to the Ballot
Board” under R.C. 3519.01. Relators contend that the attorney general
“relinquished any further authority over the summary” by failing to perform his
mandatory duty within the ten-day period specified in R.C. 3519.01(A). They
argue that giving the attorney general another opportunity to review the summary
would frustrate the ten-day deadline in the statute, which, relators say, was enacted
to prevent State officials from impeding the petition process. See Schaller v.
Rogers, 2008-Ohio-4464, ¶ 51 (10th Dist.) (noting that the enactment of the ten-
day provision limits “the attorney general’s ability to impede the process”).
{¶ 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 proposed amendment;
he reviewed only the title. Under R.C. 3519.01(A), there can be no certification
until the attorney general has reviewed the summary and determined that it is a fair
and truthful statement of the proposed amendment. The statute does not allow us
to order the attorney general to certify a summary that he has not examined.
{¶ 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
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certification under R.C. 3519.01. Barren at 169, 170. The attorney general refused
to certify the summary on the basis that the matters addressed in the petition were
not subject to referendum. Id. at 171. This court rejected the attorney general’s
rationale and granted a writ of mandamus directing him to certify the summary as
a fair and truthful statement of the proposed measure. Id. Since the attorney
general’s only reason for refusing certification was his opinion that the measure
was not subject to referendum, this court found it “implicit that, in [the attorney
general’s] opinion, the summary meets the requirement of being a fair and truthful
statement of the matter to be referred.” Id.
{¶ 41} This case presents a different issue and evidentiary 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 R.C. 3519.01;
instead, here he rejected the petition solely because he found the title defective.
Thus, he has not yet assessed the summary itself. In contrast, the attorney general
in Barren had reviewed the summary and had refused to certify it based on a reason
that was not part of his “honest and impartial evaluation” of the summary. Id. at
170. Unlike in Barren, we cannot say here that the attorney general has implicitly
determined that relators’ summary is fair and truthful, because he has not reviewed
it for that purpose.
{¶ 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 R.C. 3519.01, we order him to do so. See, e.g., State ex rel.
Dunn v. Plain Local School Dist. Bd. of Edn., 2020-Ohio-339, ¶ 23, 26 (granting a
limited writ of mandamus ordering performance of “duties required by law for the
potential placement of the proposal” on the ballot rather than the requested writ
seeking outright placement on ballot).
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SUPREME COURT OF OHIO
III. CONCLUSION
{¶ 43} For the foregoing reasons, we grant a limited writ of mandamus
ordering the attorney 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.
__________________
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