Ohio Supreme Court

By: Peggy Kirk Hall, Friday, February 08th, 2019

Written by Ellen Essman, Sr. Research Associate

The Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” initiative could be placed before Toledo residents in a special election on February 26, 2019.   The Lake Erie Bill of Rights (LEBOR) is a proposed amendment to the Toledo City Charter.  Josh Abernathy, an opponent to the initiative, brought the lawsuit seeking a “writ of prohibition”—meaning he wanted the Ohio Supreme Court to determine that the Lucas County Board of Elections must remove LEBOR from the special election ballot.

The Supreme Court began its analysis in the case by explaining that in order to obtain a writ of prohibition in an election case, the party bringing suit must prove all of the following:

  • The board of elections exercised quasi-judicial power,
  • The exercise of that power was unlawful, and
  • The party bringing suit has no adequate remedy in the ordinary course of law.

The Supreme Court examined the three elements in reverse order.  The Court quickly answered the third element in the affirmative—reasoning that because the election was so imminent, Abernathy did “not have an adequate remedy in the ordinary course of the law,” because any other suit, such as an injunction, would not be finished prior to the election.

The Supreme Court determined that the second element was not satisfied.  The Court reasoned that the “exercise of power” was not “unlawful,” because “a board of elections has no legal authority to review the substance of a proposed charter amendment and has no discretion to block the measure from the ballot based on an assessment of its suitability.”  In doing so, the Supreme Court pointed to past cases it had decided, as well as the language in Article XVIII, Section 9 of the Ohio Constitution, which must be read with Section 8, both provided above.  Section 9 says that a charter amendment can “be submitted to” the voters “by a two-thirds vote of the legislative authority,” as well as through a petition signed by 10 percent of the voters in the municipality. Then, as is explained above, the board of elections must pass an ordinance to include the proposed amendment on the ballot.  After that, the Supreme Court found, based on precedent and the language of the Constitution, the only responsibility of the board of elections is to put the charter amendment on the ballot—the board has no other authority.

Finally, the Ohio Supreme Court concluded that since the second element was not met, there was no reason to address the first element—whether or not “the board’s exercise of authority was quasi-judicial.”  Abernathy also argued that the board of elections should not have put LEBOR on the ballot due to the doctrine of claim preclusion—meaning that since the Court had already decided a case concerning LEBOR, the board should not have the power to place it on the ballot afterwards.  The Supreme Court disagreed, pointing once again to the language in the Ohio Constitution, which effectively says that “the board had no power to keep the proposed charter amendment off the ballot for any reason, including claim preclusion.” In sum, the Supreme Court decided that based on a reading of case law and the Ohio Constitution, the board of elections in Toledo had no option other than placing LEBOR on the ballot.  This outcome does not necessarily mean that if Toledo passes LEBOR, it is a done deal; if and when it passes, courts could determine it is unconstitutional and/or beyond the scope of the city’s power. 

The case is cited as State ex rel. Abernathy v. Lucas Cty. Bd. Of Elections, Slip Opinion No. 2019-Ohio-201, and the opinion is available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-201.pdf.

By: Evin Bachelor, Friday, January 11th, 2019

Written by: Evin Bachelor, Law Fellow

Welcome to 2019 from all of us at the OSU Extension Agricultural and Resource Law Program!  With a new Congress, a new Ohio General Assembly, and a new slate of leaders atop Ohio’s executive offices, we are expecting a flurry of activity in the new year.  Our resolution this year is to keep you in the know about agricultural law news, and maybe find some time to exercise.

Here’s our latest gathering of agricultural law news that you may want to know:

U.S. Supreme Court declines to hear state livestock standard lawsuits.  In a previous blog post, we noted that California and Massachusetts had adopted laws that would require sellers of certain meats and eggs to follow heightened animal care standards in order to sell those products within California or Massachusetts.  Thirteen states, led by Indiana, quickly sued Massachusetts to stop its law from taking effect.  Missouri led another group of thirteen states in suing California.

Indiana and Missouri had attempted to have their cases brought directly before the U.S. Supreme Court, arguing that the U.S. Supreme Court has “original jurisdiction” over claims between states.  After the states filed their arguments with the Supreme Court, the justices asked the U.S. Solicitor General whether he believed these cases were appropriate for the Court’s original jurisdiction.  The Solicitor General filed briefs in the Indiana v. Massachusetts and Missouri v. California maters, and suggested that the Supreme Court should not exercise original jurisdiction because, among other things, the states lack the proper standing to sue.  Here, this argument essentially means that the resulting harm from enforcement of the statutes would not harm the states as states, but only some of their citizens, and that those citizens may still sue California or Massachusetts for their individualized harm.

The Supreme Court took the position of the Solicitor General and denied the requests of Indiana and Missouri to have the cases brought before the Court.  Any further action will have to be taken through the lower courts.  For more information about the Missouri v. California matter as argued to the Supreme Court, click here.  For more information about the Indiana v. Massachusetts matter as argued to the Supreme Court, click here.

USDA not required to adopt Obama-era “Farmer Fair Practice Rules,” according to federal appeals court.  In December 2016, the USDA published the Farmer Fair Practices Rules as an interim final rule, and published two amendments to its rules that deal with the Packers and Stockyards Act.  The amendments addressed the ease of bringing a lawsuit for unfair and uncompetitive business practices under the Packers and Stockyards Act.  The rule was set to take effect at the end of February 2017, although the amendments were only proposals that had not fully gone through the required notice and comment process.  In early February 2017, citing the President’s regulatory freeze, and arguing that the rule would cause more litigation and confusion, the USDA postponed, and ultimately withdrew, the rule.  The USDA also did not take action on the two proposed amendments.  The Organization for Competitive Markets sued to stop the USDA from withdrawing the interim final rule, and to compel the USDA to promulgate the two amendments, arguing that the 2008 Farm Bill requires action by the USDA.

On December 21, 2018, the United States Court of Appeals for the Eighth Circuit denied the Organization for Competitive Markets’ request for review.  The court explained that the USDA did not fail to fulfill its mandate, describing Congress’s language as ambiguous.  Further, the court said that the USDA’s withdrawal of the interim final rule followed the proper notice and comment procedures.  Ultimately the court believed that Congress has been monitoring this issue and if Congress wishes for a more specific action, then Congress should act.  The court’s opinion in Organization for Competitive Markets v. USDA, No. 17-3723 (8th Cir. 2018) is available here.

Funding for National Weather Service and National Algal Bloom Program receives President’s signature.  On Monday, January 7th, President Trump signed Senate Bill 2200, which passed during the previous Congress.  The bill increases funding for the National Weather Service’s agriculture related weather monitoring and forecasting from $26.5 million in 2019 to $28.5 million by 2023.  The Office of Oceanic and Atmospheric Research, the research arm of the National Oceanic and Atmospheric Administration (NOAA), will see an increase in funding from $136.5 million in 2019 to $154 million by 2023.  The bill also instructs NOAA to “plan the procurement of future data sources and satellite architectures,” essentially instructing NOAA to think about cost-effective ways to upgrade weather monitoring systems both on the ground and in space.  The National Integrated Drought Information System will also see an increase in funding from $13.5 million this year to $14.5 million by 2023.  The program is to use some of the funding to “develop a strategy for a national coordinated soil moisture monitoring network” within the next year.  Finally, the bill also reauthorizes $20.5 million each year through 2023 for relief from hypoxia or harmful algal blooms “of national significance,” which the bill defines as “a hypoxia or harmful algal bloom event that has had or will likely have a significant detrimental environmental, economic, subsistence use, or public health impact on an affected state.”  For the text of the act, visit Congress’s webpage here.


Ohio Case Law Update

  • Ohio Power Citing Board cannot extend construction certificate for wind farm by simple motion, but must follow amendment process, according to the Ohio Supreme Court.  Black Fork Wind Energy filed an application with the Ohio Power Citing Board (“the board”) to construct a wind farm in Crawford and Richland Counties in 2011, and the board approved the application in January 2012.  Black Fork had five years, until January 2017, to begin construction on the project.  The project was delayed due to a lawsuit challenging the project, and Black Fork sought an additional two years to begin construction.  The board granted Black Fork’s motion without a full application to amend and investigation.  The board argued that it regularly grants such extensions and that extensions do not amount to an “amendment” that would require an application because an extension is not “a proposed change to the facility.”  The majority of the Ohio Supreme Court disagreed, and held that the board acted improperly.  Because the commencement of construction was a term in the certificate, granting an extension amounts to an amendment in the certificate.  As such, the board should not have acted on the request without requiring an application for amendment and investigation.  The Court reversed the order and remanded the issue back for further proceedings.  Justices Fischer and O’Donnell dissented, arguing that the Court should defer to the board in how it reads “amendment” under Ohio Revised Code § 4906.07(B).  For the Ohio Supreme Court’s opinion from In re application of Black Ford Wind Energy, Slip Opinion No. 2018-Ohio-5206, click here.
  • Creditors must first seek payment of unpaid bills from estate of deceased spouse before attempting to collect from a surviving spouse, according to the Ohio Supreme Court.  In Embassy Healthcare v. Bell, Mr. Robert Bell received care at a nursing home operated by Embassy Healthcare.  Embassy sent a letter for collection to his wife, Mrs. Bell, six months and three days after he had passed away, but no estate for Mr. Bell had been opened.  In Ohio, creditors have six months to request an estate administrator be appointed in order to collect a debt from an estate, but Embassy did not make such a request.  Since it missed the six month statute of limitations, Embassy tried to seek collection from Mrs. Bell under Ohio’s “necessaries” law, as provided in Ohio Revised Code § 3103.03.  This law requires spouses to support their spouse with money, property, or labor if their spouse cannot do so on their own; however, the Ohio Supreme Court has said that a person is responsible for their own debts first, and that under this statute their spouse will only be liable if that person cannot pay for their debts.  In this case, the Ohio Supreme Court said that Embassy had to seek payment from Mr. Bell’s estate before it could require payment from his spouse.  Since the statute of limitations had run to bring a claim against Mr. Bell’s estate, Embassy would be unable to demonstrate that Mr. Bell’s estate could not cover his personal debts.  Therefore, Embassy would not be able to prove an essential requirement of Ohio’s necessaries law, and cannot recover from his spouse.  For the Ohio Supreme Court’s opinion in Embassy Healthcare v. Bell, Slip Opinion No. 2018-Ohio-4912, click here.
  • Trial court may determine width of easement as a question of fact, and will not be reversed by appellate court unless the evidence shows it clearly lost its way, according to Ohio Court of Appeals for the 7th District.  A property owner signed an express easement to a neighbor so that the neighbor could cross the property owner’s land to access the public road.  The written easement did not specify the width of the easement, but the neighbor cleared a path approximately 10 feet wide.  The property owner eventually sold the property, and the new owner laid gravel on the path from the public road to their garage, and the neighbor extended the gravel all the way to his own property.  Disputes later arose regarding the easement, and the neighbor sued the new property owners for breach of easement, and sought a declaration that the easement was thirty feet wide.  Ohio case law allows trial courts to establish the dimensions of an easement if the writing does not specify any dimensions if the trial court examines: 1) the language of the granting document, 2) the context of the transaction, and 3) the purpose of the easement.  The trial court found the easement to be ten feet wide.  The neighbor appealed, but the Seventh District found the trial court’s decision to be reasonable given the evidence and Ohio law.  Since the width of an easement is a question of fact, an appellate court will not reverse the trial court absent evidence that the trial court clearly lost its way given the weight of the evidence.  For the Seventh Districts’ opinion in Cliffs and Creek, LLC v. Swallie, 2018-Ohio-5410 (7th Dist.), click here.
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