The State Ex Rel. Ohio Liberty Council v. Brunner

Decision Date29 April 2010
Docket NumberNo. 2010-0643.,2010-0643.
PartiesThe STATE ex rel. OHIO LIBERTY COUNCIL et al.v.BRUNNER, Secy. of State, et al.
CourtOhio Supreme Court

1851 Center for Constitutional Law and Maurice A. Thompson; and Robert M. Owens, for relators.

Richard Cordray, Attorney General, and Michael J. Schuler, Richard N. Coglianese and Aaron N. Epstein, Assistant Attorneys General, for respondents Secretary of State and Ohio Ballot Board.

Richard Cordray, Attorney General, and Pearl M. Chin and Damian W. Sikora, Assistant Attorneys General, for respondent Attorney General.

PER CURIAM.

{¶ 1} This is an action for a writ of mandamus to compel respondents Secretary of State Jennifer Brunner and the Ohio Ballot Board to certify the board's approval of a proposed constitutional amendment and to certify its approval to respondent Attorney General Richard Cordray. Because relators have established their entitlement to the requested extraordinary relief, we grant the writ.

Facts

{¶ 2} On March 21, 2010, the United States Congress enacted the Patient Protection and Affordable Care Act, which was signed into law by President Barack Obama on March 23. Pub.L.No. 111-148, 124 Stat. 119 (2010). Among other things, the act requires individuals to maintain minimum essential health-care coverage beginning in 2014 and imposes a penalty for failure to maintain this coverage. Section 1501, Subtitle F, Part 1 of the Patient Protection and Affordable Care Act.

{¶ 3} On March 22, relators gathered over 3,000 signatures to submit an initiative petition to amend the Ohio Constitution “to preserve the freedom of Ohioans to choose their health care and health care coverage.” Relators are Ohio Liberty Council, a nonprofit corporation and political action committee that is a statewide coalition of 25 grassroots groups, including nearly all of Ohio's Tea Party organizations; the Ohio Project, a ballot-issue committee; and five Ohio Liberty Council members who are state electors.

{¶ 4} On April 1, pursuant to R.C. 3519.01(A), the attorney general certified that relators' summary of their proposed amendment contained “a fair and truthful statement of the proposed constitutional amendment and then forwarded the proposed amendment to the secretary of state, in her capacity as the chair of the Ohio Ballot Board, for the board's consideration under R.C. 3505.062.

{¶ 5} The amendment, which proposes to add Section 21 to Article I of the Ohio Constitution, states:

{¶ 6}ARTICLE I

{¶ 7} “Preservation of the freedom to choose health care and health care coverage

{¶ 8} Section 21(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.

{¶ 9} Section 21(B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.

{¶ 10} Section 21(C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

{¶ 11} Section 21(D) This section does not affect laws or rules in effect as of March 19, 2010; affect which services a health care provider or hospital is required to perform or provide; affect terms and conditions of government employment; or affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.

{¶ 12} Section 21(E) As used in this Section,

{¶ 13}(1) ‘Compel’ includes the levying of penalties or fines.

{¶ 14}(2) ‘Health care system’ means any public or private entity or program whose function or purpose includes the management of, processing of, enrollment of individuals for, or payment for, in full or in part, health care services, health care data, or health care information for its participants.

{¶ 15} (3) ‘Penalty or fine’ means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee established by law or rule by a government established, created, or controlled agency that is used to punish or discourage the exercise of rights protected under this section.” (Boldface sic.)

{¶ 16} On April 9, the ballot board held a meeting to determine, pursuant to R.C. 3505.062(A), whether relators' initiative petition contained more than one constitutional amendment. In the board's discussion, the secretary of state opined that although Sections A, B, and C of the proposed amendment were arguably related to the subject of individual choice in health care and health insurance, Section D was not.

{¶ 17} The secretary further explained that Section C of the proposed amendment could be successfully rationalized as relating to freedom of choice, but Section D could not:

{¶ 18} “But then when I get to (D), (D) is where I really-I mean, (C) I could probably, you know, successfully rationalize that. But when I get to (D) is where I run into problems where I don't see where I am talking about the purchase or sale of health insurance, but we're talking directly about government regulation without dealing with that industry of-of individual choice.”

{¶ 19} At the conclusion of the meeting, the ballot board adopted the secretary's recommendation, dividing the petition into two separate issues and certifying to the attorney general the original petition as two proposed constitutional amendments. In the ballot board's April 9 letter to the attorney general, the board stated:

{¶ 20} We, the undersigned members of the Ohio Ballot Board, hereby divide and certify that the initiative petition that you sent to us on April 1, 2010, proposing to add Section 21 to Article I of the Ohio Constitution contains two proposed constitutional amendments. The two proposed amendments are: one that deals with the freedom to choose health care and health care coverage; and the second that deals with the governance and oversight of the health care and health insurance industries.”

{¶ 21} Four days later, on April 13, relators filed this action for writs of mandamus and prohibition to compel the secretary of state and the ballot board to certify the board's approval of the proposed constitutional amendment as written and to certify its approval to the attorney general. In the alternative, relators request that the writs compel the attorney general to certify relators' proposed constitutional amendment pursuant to R.C. Chapter 3519. On April 15, we granted an alternative writ on relators' mandamus claim and issued an accelerated schedule for responses to the complaint and the submission of evidence and briefs. State ex rel. Ohio Liberty Council v. Brunner, 124 Ohio St.3d 1548, 2010-Ohio-1662, 924 N.E.2d 849. We also dismissed relators' prohibition claim. Id.

{¶ 22} Respondents submitted answers, and the parties submitted evidence and briefs.

{¶ 23} This cause is now before the court for our consideration of the merits.

Legal Analysis
Preliminary Matters

{¶ 24} Before addressing the merits of relators' claim, it is instructive to remember what our resolution of their claim does not address. This case is not about the relative merits of relators' proposed constitutional amendment and whether its passage would actually result in the specified purpose of preserving the freedom to choose health care and health-care coverage. Nor is this case about the constitutionality or legality of the substance of the proposed amendment. “Any claims alleging the unconstitutionality or illegality of the substance of the proposed [initiative], or actions to be taken pursuant to the [initiative] when enacted, are premature before its approval by the electorate.” State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 6, 716 N.E.2d 1114.

{¶ 25} Instead, the limited legal issue before us is whether the ballot board abused its discretion and clearly disregarded applicable law by determining that relators' initiative petition contained more than one proposed constitutional amendment.

Mandamus

{¶ 26} Relators request a writ of mandamus to compel the ballot board to certify its approval of the single proposed amendment as written and certify its approval to the attorney general. To be entitled to the writ, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of respondents to provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Husted v. Brunner, 123 Ohio St.3d 119, 2009-Ohio-4805, 914 N.E.2d 397, ¶ 11.

Lack of Adequate Remedy in the Ordinary Course of Law

{¶ 27} Because of the proximity of the June 30 deadline to file the signed initiative petition with the secretary of state to have the proposed amendment submitted to the electorate at the November 2, 2010 general election, relators lack an adequate remedy in the ordinary course of law. See State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10; Section 1a, Article II, Ohio Constitution. No right to appeal from the ballot board's determination is granted. See R.C. 3505.062; see also State ex rel. Morgan v. State Teachers Retirement Bd. of Ohio, 121 Ohio St.3d 324, 2009-Ohio-591, 904 N.E.2d 506, ¶ 20 (mandamus is an appropriate remedy to correct an abuse of discretion by a public board in a decision that is not appealable).

{¶ 28} And notwithstanding respondents' claim to the contrary, relators' mandamus claim is not an ill-disguised claim of declaratory judgment and prohibitory injunction, and neither a declaratory judgment nor a prohibitory injunction would constitute an adequate remedy in the ordinary course of law. A declaratory judgment would not be an adequate remedy without a mandatory injunction ordering the ballot board to immediately certify its approval of relators' proposed constitutional amendment, as written, to the attorney general. See State ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack (1999), 86 Ohio...

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