The Ohio Constitution

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Ohio Constitution to get a thorough review (Plain Dealer 9/24/12)

Ohio Constitution to get a thorough review (Plain Dealer 9/24/12)

The Ohio Statehouse

COLUMBUS, Ohio — While the presidential election is getting most of the attention on this November’s ballot, Ohioans will also decide whether it’s time to tinker with some of the guiding principles of this state — Ohio’s constitution.

Issue 1 on the Nov. 6 ballot asks voters whether it is time to arrange a good old-fashioned constitutional convention.

But even if Issue 1 is rejected, the state’s constitution will get a thorough review soon.

In June 2011, the Ohio legislature voted nearly unanimously to establish the Ohio Constitutional Modernization Commission, a bipartisan group of 12 legislative members and 20 non-legislative members who will serve two years unless reappointed. The commission will meet in November and offer a report of recommendations to the legislature in January on ways to improve the constitution. Any changes would have to be approved later by voters.

Democratic Rep. Kathleen Clyde of Kent, a member of the commission, said she especially wants to look at voting rights issues such as the redistricting process and the controversy over early voting this election season.

“I’m very concerned with voting rights in Ohio, especially with all of the voter suppression tactics that we’ve seen in the legislature now, out around the state and from Secretary (Jon) Husted,” she said. “I think it would be great if we could have a discussion about the right to vote, and to try to make sure it’s protected in our Ohio Constitution.”

Consider that this type of review is rooted in history that’s more than two centuries old before assuming lawmakers are needlessly meddling with the constitution. In 1789, founding father Thomas Jefferson said: “Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right.”

The last Ohio constitutional convention occurred in 1912, though the question on whether or not to have one is put to Ohioans every 20 years. Republican House Speaker and co-chair of the commission, William G. Batchelder of Medina, said a constitutional convention today would consist of 99 elected members from all Ohio counties.

The Ohio Constitutional Modernization Commission is based on a similar group in the 1970s. Like that commission, this one will study the constitution and make recommendations to the Ohio legislature, only if two-thirds of the members approve. Legislators will then vote whether to bring the recommendations to voters, which would require a three-fifths majority of the General Assembly.

Steven Steinglass, an expert on the Ohio Constitution and dean emeritus at the Cleveland-Marshall College of Law, said the two-thirds majority requirement is an attempt to cut down on partisan recommendations.

Batchelder said he believes the commission is a better way to revise the constitution than a convention.

Legislative members of the commission were chosen by party caucus leaders, and non-legislative members were chosen via an application and review process by the legislative members.

Out of the 20 chosen, 14 gave contributions to local political campaigns within the last four years. Joseph Rugola, for example, gave nearly $20,000 to Democratic campaigns in 2010, and Frederick Mills, in addition to contributing to Republican campaigns in recent years, is a lobbyist for various oil companies, including BP.

Former Republican Gov. Bob Taft and former Republican House Speakers Jo Ann Davidson and Charles Kurfess are also non-legislative members. Members do not receive compensation.

Batchelder said contributions weren’t taken into account in the selection process.

“I think that probably shows that they’re very interested in what’s going on,” he said. ” But I never looked it up; I didn’t pay attention to that, frankly.”

Clyde agreed, saying Democrats’ main focus when recommending members was diversity. Batchelder said another one of his priorities was ensuring members were “capable with the law.”

The 1970s commission had 20 of its recommendations go before voters, and 16 were approved. Some of the amendments included affirming that the voting age had been reduced from 21 to 18 and revising the voting process so the governor and lieutenant governor would be jointly elected.

“The 1970s commission is widely viewed as having been very, very successful,” said Steinglass, adding that most of the topics the commission addressed were not the “high visibility, super-contentious issues,” but rather general procedures within Ohio’s government.

Most states have a recurring ballot vote on the need for a constitutional convention, but only a few have adopted the commission process.

Kate Irby is a fellow in Ohio Universitys E.W. Scripps School of Journalism Statehouse Bureau.

Constitutional editors gather in Ohio: editorial (Plain Dealer 1/1/12)

Constitutional editors gather in Ohio: editorial (Plain Dealer 1/1/12)

By The Plain Dealer Editorial Board 
on January 01, 2012 at 8:19 PM, updated January 04, 2012 at 5:51 PM

Ohioans periodically are asked, by a statewide ballot question, if they wish to call a convention to revise or replace the Ohio Constitution, last overhauled in 1912.

Voters said no in 1932, 1952, 1972 and 1992. They’ll be asked again this November, and there’s at least a chance they’ll say yes. Either way, the timing couldn’t be better for the new Ohio Constitutional Modernization Commission, which met Wednesday for the first time.

The commission’s two chairmen are experienced legislators: Ohio House Speaker William Batchelder, a Medina Republican, and Rep. Vernon Sykes, an Akron Democrat.

Other Northeast Ohio legislators on the panel are Sen. Michael Skindell, a Lakewood Democrat, and Reps. Lynn Slaby, a Copley Republican, Kathleen Clyde, a Kent Democrat, and Sen. Larry Obhof, a Republican who represents Medina, Holmes and Wayne counties and portions of Ashland County.

All told, six state senators and six state representatives — half from each party — are members of the commission. The 12 legislators will pick 20 nonlegislators as commissioners, for a grand total of 32.

The aim of the commission is to make recommendations to the General Assembly for potential constitutional amendments. And if Ohio voters do call a constitutional convention, the commission is required to recommend potential amendments to the convention.

‘Any commission recommendation for an amendment would have to be supported by at least two-thirds of the commission’s 32 members. And no recommended amendment could become part of the Ohio Constitution without supermajority votes of the General Assembly, followed by a statewide referendum.

Through General Assembly grandstanding and voter-petitioned special-interest amendments, the constitution is bloated with arguably unnecessary verbiage. For example, the constitution specifies, by tax-parcel numbers, the exact locations of the four casinos under construction in Ohio. That meant that re-siting the Columbus casino across town required a statewide referendum. That’s just one of the legal absurdities the Constitutional Modernization Commission needs to address as it moves forward.

It’s sure to find others.

The flaws behind the issues that confront voters on Ohio ballots: Thomas Suddes (Plain Dealer 11/3/13)

From the Plain Dealer Sunday November 3, 2013

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The flaws behind the issues that confront voters on Ohio ballots: Thomas Suddes


Thomas Suddes, Northeast Ohio Media GroupBy Thomas Suddes, Northeast Ohio Media Group 
on November 03, 2013 at 4:15 AM

  Ohioans have issues, and not just the way that Oprah and Dr. Phil use that word. On Tuesday’s ballot, voters will confront (or, in early voting, they confronted), 1,677 local issues, including 195 school issues, according to Secretary of State Jon Husted, a suburban Dayton Republican.

That’s direct democracy for you, the fruit of three threads woven into Ohio politics. Thread One was Andrew Jackson’s (stated) belief in the common person (unless that person was black or Native American). Thread Two was the belief of Ohio Progressives in so-called “direct democracy.” History also wove a third thread into Ohio ballots, a legacy of Prohibition: Local option liquor elections. There are 308 local-option liquor questions on Tuesday’s ballot.

 Those factors give Ohioans lots of choices several times a year. For instance, on Tuesday’s ballot are 1,055 proposed tax levies and 65 local income-tax questions. That ocean of yeses and noes means voters get direct say over how they’re taxed and governed. That’s a lot more say than voters in some other states get.

Of course, there’s a school of thought that Ohio voters are too dumb or stingy to make good choices. The school crowd, in particular, hates levy elections. Levy elections give Ohioans what amounts to a veto over school property taxes.

In contrast, unless a lobby, or ballot petitioners, mobilizes statewide, at great expense, to gather hundreds of thousands of voter signatures, Ohioans — usually — aren’t given ballot-box say over state taxes (e.g., income and sales taxes).

That can make school levies lightning rods for voter anger over other taxes (set in Columbus and Washington) or other public officials. (True, if all parents did their jobs, Ohio schools could do their jobs — at less expense, and with less hassle.)

Meanwhile, thanks to Progressives. who fashioned much of today’s Ohio Constitution in 1912, Ohioans can propose laws (the initiative); veto laws passed by the legislature (the referendum, such as 2011’s, on union-busting Senate Bill 5); or unseat local elected officials (the recall). According to Husted’s tally, Tuesday’s ballot includes 20 local initiative and referendum issues.

Most ballot questions — bond issues, Sunday liquor sales — are routine as standard time. Some, though, are high-octane. And direct-democracy reformers forgot that a mob can be a mob whether it uses streets or ballots, especially in statewide campaigns. Example: The gay-bashing 2004 initiative that aimed to ban same-sex marriage in Ohio, a vote that had far more to do with suburban southwest Ohio’s need to kick somebody — anybody — around than it had to do with sexuality.

And Ohioans were told loud and clear that 2009’s casino initiative would do far more for Dan Gilbert and Penn National Gaming than it would ever do for Ohio. But the casino crowd spent $50 million; their issue passed.

Advocates of direct democracy tended to come from comfortable backgrounds. But, then and now, most Ohioans are so hard-pressed rearing families, working jobs and trying, somehow, to relax, they don’t have the time to study up on issues or debate the constitution, or fine points of school funding.

Raymond Moley, a famed Greater Clevelander who landed in Democratic President Franklin Roosevelt’s Brain Trust but later became conservative, once looked back on the era of direct-democracy reforms. Moley decided the power given voters to legislate directly — through referendum and initiative — fell “far short of the romantic notions of the Progressives.”

One notion Ohio reformers had: The power of direct legislation would break the backs of special interests at Ohio’s city halls and courthouses, and especially on Capitol Square in Columbus.

Today, 101 years later, Ohioans know how that worked out.

Thomas Suddes, a member of the editorial board, writes from Athens.

Mike Curtin commentary: Ohio Constitution could use some tweaking (Columbus Dispatch 11/15/10)

Mike Curtin commentary: Ohio Constitution could use some tweaking (Columbus Dispatch 11/15/10)

By Mike Curtin The Columbus Dispatch  •  Monday November 15, 2010

Ohio could benefit from a state constitutional revision commission.

The state last utilized such a panel in 1971-1977. It was a success. The commission recommended 18 constitutional amendments, 15 of which were adopted by Ohio voters.

Among other revisions, that effort produced:

  • Tax reform, including classifying real property for tax purposes and taxing agricultural land at current value.
  • Ballot reform, by creating the Ohio Ballot Board to ensure uniformity and requiring the rotation of candidate names on the ballot to ensure fairness.
  • Executive branch reform, requiring election of the governor and lieutenant governor in tandem, and establishing an order of gubernatorial succession.
  • Enfranchisement reform, conforming Ohio law with the federal law granting 18-year-olds the right to vote.
  • County government reform, establishing a permissive, alternative form of county government.

Ohio faces plentiful challenges. Some of them cannot be solved without changes in the state constitution.

Adopted in 1851, it is one of the oldest state constitutions in America and contains many antiquated provisions.

A top-level, bipartisan commission, comprised of state lawmakers, academics and business and labor leaders, would educate and inform all Ohioans of potential reforms to better position our state for the challenges of the 21st century.

Among other topics, the panel most likely would examine tax reform, state and local government reform, term limits, merit selection of judges and reapportionment reform.

Ohio has not thoroughly examined its constitution, its basic governing document, in two generations. A new exam is overdue.

Because of its success, the previous experience should be studied and emulated.

In August 1969, Gov. James A. Rhodes and the General Assembly passed legislation creating a 32-member commission, including 12 state lawmakers.

Ohio was rather late to the game, as the period of 1950-1970 gave rise to constitutional-reform movements in 45 states.

There was widespread recognition that state constitutions contained many provisions that were outmoded.

Ohio’s state leaders also recognized that, in 1972, voters would face the ballot question, which appears every 20 years, of whether to call for a state constitutional convention.

Ohio’s constitutional requirement to ask the voters this question every 20 years follows Thomas Jefferson’s maxim that each generation should have the opportunity to choose its own form of government.

The late 1960s were politically and socially tumultuous, and Statehouse leaders were concerned over the direction a constitutional convention might take. The commission was a way to take the steam out of any momentum for a 1972 convention call.

Interestingly enough, the convention question will appear again in November 2012.

Ohio has not had a constitutional convention since 1912 and doesn’t need one now. But it does need constitutional revision.

The previous commission divided into committees (Executive/Legislative, Local Government, Finance and Taxation), met monthly and held hearings across the state. It published a newsletter to keep the public informed.

The 12 lawmaker members, chosen by legislative leaders, were politically balanced: six Democrats, six Republicans; six Senate members, six House members.

Those 12 chose the other 20 members, who were broadly representative of business, labor, the judiciary and academia.

Political balance is a key to success, because no proposed amendment to the Ohio Constitution will be approved by the voters without wide support.

With the previous commission, no proposal for a constitutional amendment could go to the General Assembly without the approval of two-thirds of commission members.

To put a proposed amendment on the ballot, both houses of the General Assembly must approve it by a three-fifths vote.

The commission was charged with completing its work by July 1, 1979. It actually finished early, delivering a final report to the General Assembly on June 30, 1977. Ohio still benefits from the work of that group.

Another study commission, if carefully selected and politically balanced, most likely would produce timely benefits for Ohio.

Mike Curtin is associate publisher emeritus of The Dispatch.

Information kept by our government should be presumed open to public (by David Marburger 3/10/13)

Article written by David Marburger, a partner at Baker Hostetler’s principal office in Cleveland. Mr. Marburger is co-author of Access with Attitude, a book about Ohio’s sunshine laws.

This op-ed appeared in the Columbus Dispatch on Sunday March 10, 2013 

Information Kept by Our Government Should be Presumed Open to Public

It’s time for the Ohio General Assembly to kill the stealth exemption.

The stealth exemption is a nickname for a series of misguided rulings by the Ohio Supreme Court in interpreting Ohio’s open-records law, our most potent catalyst for accountable government.

The court’s rulings have made Ohio the only state where citizens must prove that information kept by public agencies is supposed to be open. 

In every other state, officials must comply with public requests to see records in their custody unless the officials prove that the information matches an explicit description in a statute that identifies the kinds of information that they can withhold.

Ohio’s top court has moved that key component of open government back to the 17th century, when England ruled America.

In England, the government was the king’s government. An English citizen had to satisfy the king’s ministers that the citizen deserved to see particular records. If Mr. Jones could show that he was about to sell his land, he could see his recorded deed. 

But America emphatically rejects that idea. Officials keep and create records only for our benefit, under our authority, and with our money. Open records is the default.

In limited instances, we’ve decided that society benefits more by closing certain categories of records than by opening them. So we’ve enacted statutes that specifically identify categories of records that officials may withhold from us. How government security systems work is an example. 

But about 10 years ago, Ohio agencies began to say no even when recorded information that we requested didn’t fit any statutory exception. The agencies pounced on the statutory definition of record, which applies to recorded information that documents any activity of government. 

The logic: If official information isn’t a “record,” then it can’t be a “public record.” And if it isn’t a “public record,” the public has no right to see it. 

They insisted on narrow, highly literal interpretations of “record,” and they succeeded in persuading the Ohio Supreme Court to adopt the narrow view. Actual rulings: 

• Citizens’ letters kept by a judge that tried to influence her sentencing in a controversial criminal case — closed because they aren’t “records.”

• Parents’ letters received by a public high-school superintendent describing how the high-school basketball coach was treating the student players could be freely destroyed because they weren’t “records.”

• Responses by prospective jurors in a criminal case to the court’s written questions, and used to select which jurors to keep and exclude from the case — closed because they aren’t “records.”

• Emails among county employees using county computers while on the job that racially harassed another employee — closed because they aren’t “records.” 

• Applications to become public-school superintendent sent to the school district’s post office box at the school district’s instruction were not “records,” and so were closed until the school board disclosed them at the board’s own initiative.

The definition of record has become a stealth exemption from the public’s right to know. It’s a black hole of government-stored information that we can’t see and that no one can categorically identify.

The Ohio Supreme Court has never answered this question: Which law allows our agencies to keep recorded information that isn’t a “record”? Answer: There isn’t one.

Or this question: Which theory of democracy justifies allowing officials to conceal information kept in managing our affairs, collected using our authority, and paid for with our funds — when no law identifies that information? Same answer.

All recorded information kept by our government agencies must be presumptively open to the public unless expressly closed by statute.

If that makes the family photos on the mayor’s secretary’s desk a public record, then pass a law that exempts the personal effects of public employees that are incidental to their employment. But nothing should be exempt from public view unless one of our statutes says it is.