State lawmakers did not violate the Ohio Constitution when they added a 67-page amendment allowing the takeover of academically distressed local school districts to a 10-page bill and passed the measure on the same day, the Ohio Supreme Court ruled today.

A divided Supreme Court ruled that House Bill 70, introduced in 2015 to create community learning centers, had the same “common purpose of seeking to improve underperforming schools” when it was enacted. The bill contained provisions appointing a chief executive officer with “complete operational, managerial, and instructional” control of a distressed school district.

Writing the Court’s lead opinion, Chief Justice Maureen O’Connor wrote the Court was “sympathetic” to the Youngstown City Schools Board of Education, which challenged the takeover of the district and argued the last-minute addition of the amendment violated the Ohio Constitution’s “three-consideration rule.” However, the chief justice noted the rule does not require any specific level of deliberation or debate as long as the bill is not “vitally altered.”

“It is not our role to police how the amended language came into existence,” she wrote.

Justice Patrick F. Fischer joined the chief justice’s opinion.

Justice Sharon L. Kennedy concurred in part and concurred in judgment only in part, with a written opinion. Justice R. Patrick DeWine joined Justice Kennedy’s opinion.

Justice Judith L. French concurred with a separate written opinion.

Justices Michael P. Donnelly and Melody J. Stewart dissented with separate written opinions.

Justice Donnelly stated that by any fair measure, “the amendments added by the Senate at the 11th hour” did not receive the required three considerations in either house of the General Assembly. He described today’s ruling as a “travesty of justice,” and “an egregious display of constitutional grade inflation.” Justice Stewart wrote the decision is a “complete abdication” of the Court’s role as guardian of the state constitution.

The Court’s ruling affirmed decisions by the Tenth District Court of Appeals and the Franklin County Common Pleas Court. Both had ruled the state did not violate the Ohio Constitution when it enacted the reform law.

Change Added and Passed on Same Day
H.B. 70 was introduced in February 2015 to authorize school districts to create community learning centers at schools where academic performance is low. The bill defined a “community learning center” as a school that partners with community members to provide comprehensive educational, development, family, and health services to students and families during and after normal school hours. The bill as introduced was 10 pages.

The Ohio House of Representatives considered the bill for the first time on the day it was introduced, and considered it a second time a week later when it was referred to the House Education Committee. It received its third consideration in May 2015 when the House passed it.

The day after passage in the House, the Ohio Senate considered the bill for the first time, and a week later considered it a second time when it was referred to the Senate Education Committee. On June 24, 2015, the Senate Education Committee added a short amendment pertaining to community learning centers, and a 67-page amendment that modified the structure of academic-distress commissions.

The large amendment added the requirement that for any school district that received an overall “F” grade on its state report card for three consecutive years, an academic distress commission must appoint a CEO with complete control of the district.

The full Senate considered H.B. 70 for the third time that day, and passed the bill. The House received the Senate’s version on the same day. From the House floor, the representatives concurred with the Senate’s amendments and sent the bill to Gov. John Kasich, who signed the bill into law. The law took effect in October 2015.

Youngstown Schools Object to New Law
Youngstown city schools were the first schools subjected to the revised distress commission law and the appointment of a CEO to manage the schools. Before the law took effect, the board of education and labor unions representing the teachers and school staff filed a lawsuit in Franklin County Common Pleas Court to block the bill, challenging the constitutionality of H.B. 70 and the General Assembly’s process for approving it.

The school board argued the law violated Article II, Section 15(C) and Article VI, Section 3 of the Ohio Constitution. Article II, Section 15(C) requires every bill “be considered by each house on three different days,” and Article VI, Section 3 states that a city school district has the power “by referendum vote to determine for itself the number and members and the organization of the district board of education.”

The trial court allowed the law to go into effect. In October 2017, the court formally denied the school board’s challenge. The board appealed to the Tenth District, which affirmed the trial court’s decision in a 2-1 decision.

The board appealed to the Supreme Court, which agreed to hear the case and conducted oral argument at a special offsite court session in Williams County.

Court Considers Three-Consideration Rule
Article II, Section 15(C) states: “Every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house in which it is pending suspend this requirement, and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house.”

Chief Justice O’Connor explained that the Supreme Court’s 1985 Hoover v. Franklin Cty. Bd. of Commrs. decision found that when it can be proven a bill was not considered three times, the bill is void and does not become a law. Her opinion noted that a bill does not need to contain exactly the same language in each of the three readings to be valid.

The Court in 1854 (Miller v. State) ruled a bill’s language can change between considerations, but if it is “vitally altered” then the new version has to be read again on three different days.  In the Court’s 1994 State ex rel. Ohio AFL-CIO v. Voinovich decision, the Court further defined “vitally altered” as “departing entirely from a consistent theme.” The chief justice’s opinion today noted the Court rejected setting a bright-line test to distinguish between bills that have been heavily amended from those that are vitally altered, but instead ruled the key consideration should be whether the bill maintained a “common purpose” before and after its amendment.

In Hoover, a bill was introduced to make changes to a criminal law. The amended language completely stripped the introduced provisions from the bill and replaced it with methods to construct nonprofit hospitals and healthcare facilities. The Court found the bill was vitally altered and required three readings with the new language.

In Voinovich, a four-page bill was introduced to fund the Ohio Bureau of Workers’ Compensation. It was amended and expanded to a 20-page bill that changed the structure and operation of the workers’ compensation system. The Court ruled that while the workers’ compensation bill was heavily amended, it retained a common purpose and did not require an additional three considerations after it was amended.

Today’s lead opinion noted that the parties do not contest H.B. 70 was read on three different days, or that there was no vote to suspend the three-consideration requirement. Instead, the Youngstown school board argues that the bill the House considered three times and the Senate twice was materially different than the bill considered once by the Senate for the final time and passed by the House on the same day. The state, arguing the bill met the consideration requirement, maintained the amended bill had the same common purpose as the introduced bill: improving education in underperforming school districts.

“The versions of H.B. 70 as introduced and as enacted had a common purpose of seeking to improve underperforming schools, even though there are differences in the tools through which each version pursued that goal. Despite the introduced and enacted bills’ differences, they are more similar to the bills at issue in Voinovich, in which we found no vital alterations, than the ones in Hoover, in which the bill had been vitally altered,” the Court ruled.

The lead opinion noted that in Voinovich, both houses were aware of the governor’s announcement that he would veto any funding bill for workers’ compensation if the system was not substantially reformed, and that both houses deliberated for several months on proposed changes before they were added to the bill on one of its last readings. 

The lead opinion noted this assertion contrasts with the General Assembly’s work on H.B. 70, where the bill was heavily amended on the same day both houses passed it into law. The opinion reiterated that in its Voinovich opinion, the Court stated it would  not put itself “in the position of directly policing every detail of the legislative amendment process when bills are passed containing a consistent theme.”

Powers of Local School Districts Examined
Having found the lawmakers did not violate the constitution in the course of passing the bill, the Court examined whether the state violated the constitution’s grant of powers to local boards of education.

The lead opinion stated that when examining a challenge to the powers of school boards under Article VI, Section 3, the Court “has nothing to do with the policy or wisdom of the statute. That is the exclusive concern of the legislative branch of government.”

The opinion noted the Court has previously ruled the General Assembly has broad powers to create the policies and administer the state’s public education system, and that school boards have only the powers that are conferred by statute.

The school board argued H.B. 70 unconstitutionally strips city school boards of all power, but the Court found the law reserves some power for local school boards, including the right to choose the members and the organization of the board.

The lead opinion stated Youngstown schools “fairly describes” the law as allowing the distress commission to remove nearly all power and authority from the city school board and placing it into the hands of a chief executive officer. Lawmakers do not violate the constitution by making substantial changes to the operations of public schools, the Court concluded.

“The General Assembly, therefore, may lawfully influence the authority of school boards in any manner of ways, large and small,” the opinion stated.

Concurrence Maintains Three-Reading Rule Is Not Mandatory
In her concurring opinion, Justice Kennedy agreed that the state did not violate either constitutional provision when enacting H.B. 70. However, she disagreed with the lead opinion’s assessment of the three-consideration rule, explaining that this provision is “directory” and not enforceable by the courts.

Justice Kennedy noted that the 1854 Miller decision “distinguished the power of the General Assembly to enact a law from the mode by which it enacts a law.”  A statute exceeding the power of the legislature to enact must be invalidated by the courts, while a violation of a procedural rule like a “three reading” rule is not a basis for the courts to invalidate a statute but rather is enforceable only by the General Assembly, she wrote.

The rule was revised in 1973 to require three considerations rather than readings, but “nothing in the amended text of Article 15(C) indicates the intention of the people to abrogate over a century of case precedent holding that this court will not review the mode in which legislation was enacted,” she wrote. “The court’s determination in Hoover that the three-consideration rule is mandatory and that the courts may use it to invalidate legislation ... runs counter to the express intent of the framers of the 1973 amendment. Instead, Section 15(C) leaves it up to the legislature, not the courts, to enforce the three-consideration rule.”

Justice Kennedy explained that she would overrule Hoover and the cases based on it and hold that the three-consideration rule is “safeguarded by the oath each member of the General Assembly takes to uphold the Constitution, including its rules of procedure.”

Concurrence Would Eliminate “Vitally Altered” Test
In her concurring opinion, Justice French also found the 1973 changes to the constitution never authorized the Court to enforce the three-consideration rule, and she encouraged the Court to overrule Hoover. She explained the vitally altered test in Hoover has been unworkable because  courts are being called upon to review every step of the legislative amendment process.

The rule requires only that each house consider every bill on three separate days and each consideration is recorded in the journal of each respective house, Justice French wrote. Since the journals of the House and Senate each reflect that some version of H.B. 70 was considered on three separate days, the Court’s “inquiry ends there.” She stated passage of the bill did not violate the rule.

Majority Undermines Rule, Dissent Stated
Justice Donnelly’s dissenting opinion contains a detailed accounting of the legislative process. His opinion includes accounts by the original sponsor of the bill and Youngstown legislators who stated they were purposefully excluded from knowing the details of the school takeover amendment until the night before the Senate added the provisions to the bill. He added the history of the process in his dissent so that the people can decide “whether, based on these facts, we have failed them in our roles as guardians of the constitutional systems of checks and balances,” he wrote.

Justice Donnelly noted the majority bases its decision on Voinovich, in which the Court’s ruling was not clear-cut as all seven justices at the time wrote separate opinions in the case. He pointed to one concurring opinion in Voinovich that stated the Court had previously found the underlying purpose of the three-consideration rule is to “prevent hasty action and to lessen the danger of ill-advised amendment at the last moment.” The rule provides time for publicity and greater discussion of changes and affords a legislator time to study the changes and communicate with constituents, he wrote.

He stated the majority’s “superficial treatment” of the rule “sets a new low for constitutional compliance with Article II, Section 15(C) of the Ohio Constitution by replacing the three-consideration requirement with ”the far less-bothersome rule of one-and-done,” and that enacting H.B. 70 “woefully fails to meet the letter and spirit of the three-consideration rule.”

He lamented that “[f]or all the talk about academic distress, it is sadly our constitutional form of government that is in distress by the decision.” He concluded that the state legislature failed to honor the constitution by applying its legislative requirements “as they are written” and that the Supreme Court has now failed to honor the constitution by applying its terms “as they are written.”

Court Abandoned Role, Dissent Concluded

In her dissent, Justice Stewart pointed to court decisions and legal journals finding “delay rules,” such as the three-consideration rule, have been enacted to provide publicity to changes and ensure each house “knows what it is passing.” She noted the Court rejected the argument that the reading rule is unenforceable in the courts in an 1856 decision (Pim v. Nicholson).

Referring to today’s decision as a “complete abdication” of the Court’s role as guardian of the constitution, Justice Stewart noted the Court has stated its reluctance to interfere with the legislative process. But she wrote that as the state’s highest court, it has the obligation “to say what the law is,” which includes the duty to determine when a constitutional provision is violated.  H.B. 70 was vitally altered at the last minute, and passed on one day, she wrote. The legislature violated the three-consideration rule, which the Court has held as a mandatory requirement, she concluded.

“Enacting laws in this manner causes the public to lose faith in its government. And now, this court throws up its hands to sanction this type of lawmaking,” she wrote.

She concluded that today’s decision will “no doubt serve to encourage similar conduct in the future by whoever controls the majority in the legislature at any given time.”

2018-1131. Youngstown City School Dist. Bd. of Edn. v. State, Slip Opinion No. 2020-Ohio-2903.

View oral argument video of this case.

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