State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections, 93-1435

• Decision Date: 08 November 1993
• Docket Number: No. 93-1435,93-1435
• Citation: 622 N.E.2d 329,67 Ohio St.3d 597
• Parties: The STATE EX REL. MIRLISENA v. HAMILTON COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

Page 597

67 Ohio St.3d 597

622 N.E.2d 329

The STATE EX REL. MIRLISENA v. HAMILTON COUNTY BOARD OF ELECTIONS.

No. 93-1435.

Supreme Court of Ohio.

Submitted Sept. 13, 1993.

Decided Sept. 14, 1993.

Rehearing Granted and Writ Allowed Oct. 7, 1993.

Opinion Announced Nov. 8, 1993.

Beckman, Weil, Shepardson & Faller and Peter L. Cassady, Cincinnati, for relator.

Joseph T. Deters, Hamilton County Pros. Atty., Philip L. Zorn, Jr. and James W. Harper, Asst. Pros. Attys., for respondent.

Taft, Stettinius & Hollister, Kim K. Burke and Mark G. Kobasuk, Cincinnati, urging denial of the writ for amicus curiae, Hamilton County Conservative Forum.

PER CURIAM.

At an election held in the city of Cincinnati on November 5, 1991, electors voted to approve Issues 4 and 5 as amendments to the Cincinnati City Charter. These issues appeared on the ballot in the following form:

Issue 4

"Shall the proposed amendment to the Charter of the City of Cincinnati to provide that the people shall have the right to nominate, vote for and elect any citizen who is registered to vote in the city to be a member of council without restriction relating to the citizen's prior experience as a member of council by adding new Section 1A to Article IX be approved?" (Emphasis added.)

Issue 5

"Shall the proposed amendment to the Charter of the City of Cincinnati to provide that no person shall hold the office of member of the council for a period longer than four consecutive two year terms of the council unless a period of at least two consecutive two year terms of the council has intervened without such person serving on the council; that the provisions of this amendment shall apply commencing with the nominations for the election for the council term commencing December 1, 1993, and that consecutive terms of service on the council to which members were elected prior to December 1, 1993 shall be counted in determining eligibility for office under this section; and to give effect to the above provisions by repealing existing Section 2 of Article IX, and adopting new Sections 2 and 12 of Article IX be approved?" (Emphasis added.)

These two amendments, on their face, appear to some extent to be internally contradictory. There is, apparently, no provision in the Cincinnati City Charter dealing with the problem of conflicting charter provisions, i.e., whether both are void and/or whether the issue receiving the larger vote is given preference. Accordingly, in deciding the question presented to us, we follow that body of law that we are required to follow when we construe statutes.

It is the duty of any court, when construing a statute, to give effect to all of the pronouncements of the statute and to render the statute compatible (to harmonize) with other and related enactments whenever and wherever possible. Where it is not possible to totally harmonize conflicting provisions we are, pursuant to R.C. 1.50, commanded that "[i]f any provisions of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable. " (Emphasis added.)

We have followed this procedure in a number of cases. In State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 149, 580 N.E.2d 767, 770, this court said that "[a]ccordingly, we sever the offending portion of the bill * * * to cure the defect and save the portions * * * which do relate to a single subject. * * * " In State ex rel. Doersam v. Indus. Comm. (1989), 45 Ohio St.3d 115, 121, 543 N.E.2d 1169, 1175, we said that "[w]e do not find it necessary to strike the entire 1976 amendment to R.C. 4123.59(B). Indeed, it is our obligation to preserve as much of the General Assembly's handiwork as is constitutionally permissible. * * * " (Emphasis added.) We also said: "Accordingly, we find these words to be violative of the mandate that no person shall be denied equal protection of the laws and we order that they be severed and stricken from the statute. The remainder of the statute, at least as applied to these facts, can be effective and operable. " (Emphasis added.) Id. at 122, 543 N.E.2d at 1175. In S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 164, 28 OBR 250, 256-257, 503 N.E.2d 136, 142, the court said that " * * * we find that the unconstitutional portions of R.C. 4509.101 are indeed severable from the rest of the statute. While the General Assembly may wish to amend portions of the statute given our holding herein, we do not believe that the unconstitutional parts of the statute are so interconnected with the general scope of the whole statute as to make it impossible to give effect to the apparent intention of the legislature with the offending portions removed. Thus, * * * we find that the unconstitutional portions of R.C. 4509.101 are severable from the remainder of the statute." In Livingston v. Clawson (1982), 2 Ohio App.3d 173, 2 OBR 189, 440 N.E.2d 1383, learned Judge James A. Brogan of the Second District Court of Appeals, writing for the court, laid out a clear and helpful roadmap on the issue of "severability." Thus, given the foregoing, we determine the viability of Issues 4 and 5 by applying appropriate constitutional tests and then severability in order to harmonize the issues and preserve as much of the voters' handiwork as is constitutionally permissible.

Some would have us believe that this case is about the advisability or nonadvisability of term limits for Cincinnati city councilpersons. They are mistaken. The people of Cincinnati have resoundingly spoken on that issue and their judgment, at least in this forum, should not be disturbed. In passing Issue 5, however, the voters made the term limitation retroactive. This, we believe, they could not constitutionally do.

Section 28, Article II of the Ohio Constitution provides, in part, that "[t]he general assembly shall have no power to pass retroactive laws * * *." Since we have indicated that we will apply, absent any direction from the Cincinnati City Charter, the general law of statutory interpretation in construing Issues 4 and 5, we will likewise apply the Ohio constitutional provision as to retroactive legislation. We are buttressed in doing so by the decision of the United States Supreme Court, Citizens Against Rent Control v. Berkeley (1981), 454 U.S. 290, 295, 102 S.Ct. 434, 437, 70 L.Ed.2d 492, 498, where the court said that " * * * the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation."

Issue 5 provides, in part, " * * * that consecutive terms of service on the council to which members were elected prior to December 1, 1993 shall be counted in determining eligibility for office under this section * * *." (Emphasis added.) This is clearly an enactment which is meant to have retroactive effect. Such an enactment is proscribed by Section 28, Article II of the Ohio Constitution.

If we sever this unconstitutional portion of Issue 5, what remains from Issue 5 are the provisions that no person can serve more than four consecutive two-year terms on council; that any person having served such a number of consecutive terms must sit out (not be eligible to run) for two consecutive two-year terms before again being eligible to seek office as a councilperson; and that these provisions be effective commencing December 1, 1993. This then permits us to harmonize Issue 5 with Issue 4 by holding that Issue 4's language, " * * * without restriction relating to the citizen's prior experience as a member of council * * * " (emphasis added), pertains only to that service occurring before December 1, 1993 and any service thereafter is governed by the remaining provisions of Issue 5 with Issue 4 having no further effect after December 1, 1993. This construction follows the law by severing the unconstitutional portion of Issue 5, and harmonizing Issue 5 with Issue 4 and giving effect to both.

While Mirlisena sets forth other reasons to reach this result, for the purpose of deciding the question before us, it is not necessary to discuss them.

Accordingly, we strike the unconstitutional provision of Issue 5. We retain and preserve Issue 4 and the rest of Issue 5, including the term limitation provision, with Issue 4 having no further effect after December 1, 1993. Having done so, upon review of the law and the facts of this matter, we grant the requested writ of mandamus.

A. WILLIAM SWEENEY, DOUGLAS and RESNICK, JJ., concur.

PFEIFER, J., concurs in judgment only.

MOYER, C.J., WRIGHT and FRANCIS E. SWEENEY, JJ., dissent.

Writ allowed.

ALICE ROBIE RESNICK, Justice, concurring.

I concur in the per curiam opinion, but write separately to address this court's October 7, 1993 decision to grant relator's motion for rehearing. Specifically, I address why relator's rehearing motion was timely filed.

On September 14, 1993, this court announced a decision on relator Mirlisena's complaint for a writ of mandamus, ordering that the writ "is hereby, denied, consistent with the opinion to follow." State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections (1993), 67 Ohio St.3d 445, 619 N.E.2d 1013. No opinion of the court was released at that time.

It has been our practice, from time to time, to release decisions on various matters in this way, "consistent with the opinion to follow." See, e.g., State ex rel. Ruehlmann v. Luken (1992), 64 Ohio St.3d 1435, 595 N.E.2d 944, opinion to follow announced at 65 Ohio St.3d 1, 598 N.E.2d 1149; State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 64 Ohio St.3d 1451, 597 N.E.2d 1108, opinion to follow announced at 65 Ohio St.3d 5, 598 N.E.2d 1152; State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 1426, 600...