State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections

• Citation: 619 N.E.2d 1013,67 Ohio St.3d 445
• Decision Date: 14 September 1993
• Docket Number: No. 93-1435,93-1435
• Parties: The STATE EX REL. MIRLISENA v. HAMILTON COUNTY BOARD OF ELECTIONS.
• Court: United States State Supreme Court of Ohio

Page 445

67 Ohio St.3d 445

619 N.E.2d 1013

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.

In Mandamus.

This cause originated in this court on the filing of a complaint for a writ of mandamus and was considered in a manner prescribed by law. Upon consideration of relator's request for oral argument and the motion of Hamilton County Conservative Forum for leave to file brief amicus curiae,

IT IS ORDERED by the court that the request for oral argument be, and the same is hereby, denied.

IT IS FURTHER ORDERED by the court that the motion for leave to file brief amicus curiae be, and the same is hereby, granted.

IT IS FURTHER ORDERED by the court that a writ be, and the same is hereby, denied, consistent with the opinion to follow.

MOYER, C.J., and WRIGHT, RESNICK and FRANCIS E. SWEENEY, JJ., concur.

A. WILLIAM SWEENEY, DOUGLAS and PFEIFER, JJ., dissent.

DOUGLAS, Justice, dissenting.

I respectfully dissent from the judgment of the majority. For the reasons which follow, I believe relator's request for a writ should be granted.

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, I would 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, a majority of 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, I would 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.

As some would have us believe, this case is not about the advisability or nonadvisability of term limits for Cincinnati city councilpersons. 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,...