August 5, 2005

Petition approval can't be challenged, court rules

by Eric Resnick

Columbus--The wording of petitions to put Issue 1 on the ballot last year may have been flawed, an appeals court says, but once the attorney general approves it, courts cannot challenge his authority.

The ruling ended a suit brought last year by partners Thomas Rankin and Raymond Zander of Westlake in their attempt to keep the anti-gay measure off the ballot last year.

The June 2 decision by the Tenth District Ohio Court of Appeals will not affect the marriage ban amendment, which became Article XV, Section 11 of the Ohio Constitution when voters approved Issue 1 in November.

Rankin and Zander sued Ohio Attorney General James Petro and the amendment�s backers in May 2004, a week after Petro approved the petition�s summary.

Ohio law requires that petitions have a summary certified by the attorney general as �fair and truthful� before they can be circulated for signatures.

The summary read: �The amendment denies the validity and prohibits the legal recognition as marriage in Ohio of same-sex relationships and relationships comprised of three or more persons, and forbids according non-marital relationships a legal status intended to approximate marriage in certain respects.�

Rankin and Zander argued that this wasn�t an accurate explanation of what the amendment does.

They asked Franklin County Common Pleas Judge Daniel Hogan to force Petro to withdraw his approval and prohibit amendment proponents from circulating petitions.

Hogan agreed the summary was misleading, but allowed the petitions to be circulated with the actual text of the amendment instead.

Hogan also ruled that �the attorney general improperly certified the summary� and disagreed with Petro that the role of the attorney general is �primarily ministerial� because �an ordinary citizen would likely regard the attorney general�s endorsed interpretation as superior to his or her own interpretation of the actual text, given the attorney general�s legal expertise.�

Hogan reasoned that he �[could not] regard the inclusion of the certified summary on the petition as harmless.�

Because petitions were already circulated, rendering further action by either the couple or the Issue 1 proponents frivolous, only Petro appealed the matter.

The Issue 1 backers, Rev. K.Z. Smith, Lori Viars and Phil Burress, were represented by attorney David Langdon. He filed a brief saying that the law requiring a summary on petitions is unconstitutional, but he did not argue that point in court. Rankin and Zander�s attorney, Don McTigue, neither filed a brief nor argued the case any further.

Petro, however, argued to Tenth District judges Charles R. Petree, Judith L. French and retired judge John W. McCormac, sitting by designation, that Hogan had no jurisdiction over the claim that his office erred when they certified the summary. He also said that Hogan did not have the power to rule that a short amendment could serve as its own summary.

All three judges agreed that Hogan did not have the jurisdiction to consider whether or not the petition summary language was fair and truthful.

�[The legislature] vests the authority to determine whether a submitted summary constitutes a fair and truthful statement of a proposed matter solely in the attorney general,� wrote McCormac for the panel.

The decision takes away the right to challenge the summaries on future petitions.

�I don�t agree with the decision,� said McTigue. �Executive actions are always subject to judicial review.�

The issue of whether or not petitions are required to have a summary instead of the actual text is moot in this case, McCormac wrote, so it was not addressed.

Petro�s office refused for two weeks to discuss the decision.

He has also refused for nine months to say why he didn�t file a brief in support of Melanie and Sandra Essig of Columbus, who tried to block Issue 1 from the ballot through another suit, which reached the Ohio Supreme Court.

In what the measure�s opponents called �a last-ditch effort� to stop the amendment, the mother and daughter sued Secretary of State Ken Blackwell last September because he accepted signed petitions that had the amendment�s full text instead of the required summary.

Because of the timing of the suits, Rankin could not stop Issue 1, but a ruling for the Essigs would have. Such a ruling would also have settled the matter of the summary requirement the way Petro wanted in the Rankin case.

A different Tenth District three-judge panel ruled against the Essigs, allowing Issue 1 to be on the ballot. Their ruling didn�t answer any legal questions, but found the summary unnecessary �under the particular facts of this case.�

The Ohio Supreme Court declined to hear the Essig case in a 6-1 decision, saying it was already settled. The lone dissenter, Justice Paul Pfeifer, slammed his colleagues for letting Blackwell ignore the law in �blatant political interest.�

Blackwell and Petro are Republican gubernatorial candidates in 2006. Petro has chosen anti-gay Hamilton County Commissioner Phil Heimlich as his running mate.

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