The Supreme Court of Ohio today rejected an effort to invoke a 2011 amendment to the Ohio Constitution to block the state from enacting or enforcing any COVID-19 related measures.

The Supreme Court dismissed complaints filed in October 2021 against the Ohio Senate and House of Representatives. The complaints sought a court order to prevent any legislative action related to participating in a health care system. A group of 10 Ohio residents claimed that since March 2020, Ohioans have been subjected to constitutional violations through requirements to wear masks, have their temperatures taken, receive vaccinations, undergo contact tracing, and participate in the collection of healthcare information.

In a per curiam opinion, the Court stated it has no jurisdiction “to order the General Assembly to enact a specific piece of legislation,” nor can it “preemptively order the General Assembly not to enact legislation.”

Additionally, the citizens asked the Court to require the legislature to limit the authority of the Ohio attorney general to enforce health-related actions. The opinion stated the legislature may have the power to pass laws that restrain the attorney general’s actions, but the Court has no authority to order lawmakers to direct how the attorney general performs his duties.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined the opinion. Justice Jennifer Brunner concurred in judgment only.

Justice Sharon L. Kennedy concurred in judgment only, writing that she agreed with the denial of the writ because an order would “cross the boundary between judicial and legislative branches,” but disagreed that the Court lacks the jurisdiction to consider the request.

Anti-Mandate Amendment Cited in Opposition to Pandemic Measures
In the midst of a national debate over the adoption a federal health care insurance system, a citizen group placed Issue 3 on the November 2011 ballot in Ohio to prevent any federal, state, or local mandate to participate in a “health care system.” Voters approved the amendment, which became Article 1, Section 21 of the Ohio Constitution.

In response to COVID-19 pandemic, the residents, who are from different parts of the state, sought writs of mandamus from the Supreme Court to compel the House and Senate to uphold Article 1, Section 21. The residents requested that the Court require the lawmakers to defend the provision “against any passage of legislation which may possibly conflate, obfuscate or otherwise subvert the clarity of rights conveyed by” the constitution. They also asked the Court to compel lawmakers to order the attorney general to halt the “operation of any public or private entity that is participating in the alleged constitutional violations within the state of Ohio.”

Supreme Court Considered Its Authority
The per curiam opinion noted the Ohio Constitution does not have a provision specifying the separation of powers among the legislative, executive, and judicial branches. However, the doctrine is “implicitly embedded in the entire framework” of the constitution, the opinion stated.

Citing its 2018 Toledo v. State decision, the Court wrote that “the General Assembly has the power to enact, amend, and repeal statutes ,” and the lawmaking decisions of the legislature “cannot be delegated or encroached upon by the other branches of government.”

The opinion noted this is not the first time the Supreme Court has been asked to require the General Assembly to take legislative action. In the 1999 State ex rel. Grendell v. Davidson case, a writ of mandamus was sought from the Court to compel lawmakers to include airport funding in an appropriations bill being considered by a joint House-Senate conference committee. Both the House and Senate versions of the appropriations bill contained funding for the airport, but the conference committee removed it.

The Court explained it denied the writ because the separation-of-powers doctrine prohibited a court from directing legislators to perform duties that were “purely legislative in character.”

“Under the same theory, we also have no jurisdiction to preemptively order the General Assembly not to enact legislation ‘because the separation-of-powers doctrine precludes courts from enjoining the General Assembly from exercising its legislative power to enact laws,’” the Court concluded in today’s decision.

Concurrence Questions Court’s Ability to Consider Case
In her concurring opinion, Justice Kennedy maintained that the Court majority confused the justices’ right to hear the case with their discretion on whether to take action.

She wrote that subject-matter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a particular class or type of case and that the Ohio Constitution expressly provides that the Supreme Court has original jurisdiction over mandamus actions.

She added that “we have never held that the separation-of-powers doctrine should be considered when determining the subject-matter jurisdiction of courts.” Recognizing that the Court had jurisdiction to review the complaint, she wrote that, ultimately, although the “case raises significant constitutional issues regarding the limits of state government that demand resolution,” the requestors failed to prove they are entitled to a court order.

2021-1312 and 2021-1313. State ex rel. Jones v. Ohio State House of Representatives, Slip Opinion No. 2022-Ohio-1909 and State ex rel. Johnson v. Ohio State Senate, Slip Opinion No. 2022-Ohio-1912.

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