Issue 9, the Constitution, precedent, and all that legal mumbo jumbo


In the Height’s Observer’s April issue, Fran Mentch, in her [opinion, “FAQs: In support of public park Issue 9”], stated that Ohio Supreme Court held that the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution does not extend to political subdivisions. The case she referenced is Toledo City Sch. Dist. Bd. of Educ. v. State Bd. of Educ. of Ohio, 146 Ohio St. 3d 356 (Ohio 2016) (“Toledo Case”). And while that was the holding of the court, it does not apply to Issue 9 and the ordinance to “create a public activity park on the 1.07 acres of city owned land at the corner of Lee Road, Tullamore Road and Meadowbrook Boulevard.”

Simply put, the Retroactivity Clause in the Ohio Constitution prevents an “impairment of contract.” An impairment of contract occurs when contravening legislation is enacted to prevent the parties from meeting the obligations of a contract. The leading case on this issue in Ohio is Middletown v. Ferguson, 25 Ohio St. 3d 71 (Ohio 1986) (“Middletown”), which has not been overturned by the Toledo Case.

In Middletown, the state Supreme Court noted “the right of the electorate to enact or repeal legislation by way of initiative petition is a precious and fundamental one. We only hold today that the initiative power must be exercised in a manner which does not interfere with the important protections embodied in Section 10, Article I of the United States Constitution prohibiting the impairment of the obligation of contracts. The words of this court, in a case decided ninety years ago, eloquently provide the foundation of our holding: ‘But, it is urged, that a majority of those voting on the subject, voted in favor of the improvement of the roads in Athens county under this act, and that the majority should rule. The answer is, that the majority must rule inside of the provision of the constitution, and the act being unconstitutional, the vote could not make that lawful, which under the constitution is unlawful.’ Hixon v. Burson (1896), 54 Ohio St. 470, 486. Similarly, in the instant case, the electorate had no constitutional right to enact unconstitutional legislation by way of initiative petition.”

Ms. Mentch’s reliance on the Toledo Case is misplaced. The court in the Toledo Case reiterated that “the Retroactivity Clause applies to private citizens and corporations but not to political subdivisions.” The court further went on to hold, “We have rejected retroactivity challenges to legislation that sought to impose a new duty and/or create a new obligation upon political subdivisions, consistently finding that the state is able to injuriously affect its own rights.”

Essentially, if new legislation impairs a contract between two political subdivisions, such as between the Toledo Board of Education and the Ohio State Board of Education, that is not a violation of Article II, Section 28 of the Ohio Constitution. These are not the facts of Issue 9.

In the case of Issue 9, the legislation, if passed on May 3, will impair the contract rights of a private corporation, Flaherty & Collins, and as such the electorate will have “no constitutional right to enact unconstitutional legislation.” The right of the city, the political subdivision, is not the issue here. It is the right of the private corporation that has contracted with the city whose obligation is impaired by the passage of Issue 9.  And such impairment is likely to be found unconstitutional by the courts despite Ms. Mentch’s assertions to the contrary.

Jeanne Gordon

Jeanne Gordon has been a practicing attorney in Cleveland for the past 23 years. She was a member of the Citizen for Elected Mayor campaign committee and was instrumental in drafting the Charter Amendment that changed the CH form of government to an elected mayor. She is currently the treasurer for Friends of BuildCLM PAC.  She has been a resident of "Scareborough" for 20 years and goes all out with lights, music and talking pumpkins.

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Volume 15, Issue 5, Posted 3:04 PM, 04.27.2022