author: Kennedy, J.

text:
    The STATE EX REL. BEARD et al. v. HARDIN et al.
    No. 2018-0335
    Supreme Court of Ohio.
    Submitted March 26, 2018 Decided April 4, 2018
    Fitrakis & Gadell-Newton, L.L.C., and Robert J. Fitrakis, Columbus, for relators.
    Zach Klein, Columbus City Attorney, and Richard N. Coglianese, Joshua T. Cox, and Charles P. Campisano, Assistant City Attorneys, for respondents Shannon G. Hardin, Michael Stinziano, Elizabeth Brown, Mitchell J. Brown, Jaiza Page, Emmanuel V. Remy, and Priscilla R. Tyson.
    Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Harold J. Anderson III, Assistant Prosecuting Attorney, for respondent Franklin County Board of Elections.
   Kennedy, J.

{¶ 1} In this expedited election case, relators, Jonathan C. Beard and a committee in support of an initiative petition, Everyday People for Positive Change, seek a writ of mandamus to compel respondent members of the Columbus City Council to approve an ordinance placing a proposed city-charter amendment on the May 8, 2018 ballot. Relators also seek to compel respondent Franklin County Board of Elections to place the proposed amendment on the ballot. We deny the writs as to all respondents.

I. Case Background

{¶ 2} In May 2017, Beard submitted to the Columbus city clerk a certified copy of a petition for an initiative that would amend 11 sections of the Columbus City Charter. He was acting on behalf of Everyday People for Positive Change, the petition committee organized to support the proposed ballot measure.

{¶ 3} The petition's title states its objectives, in general terms:

To enact electoral system and related administrative changes to Columbus City Council by amending Sections 3, 4, 5, 6, 14, 17, 18, 20, 22, 41, and 46 of the Charter to create ten city council districts, establish nomination requirements for candidates from districts, provide for election of council members from districts, reduce the number of council members elected at-large to three, regulate growth in council staffing, change the process for mid-term appointments to vacant council seats, create term limits, establish contribution limits for council elections, and provide public access television for council elections.

The proposed changes would increase the size of city council (from 7 to 13 members); introduce district representation for 10 of the seats; impose term limits; establish new rules for filling vacancies on council; establish new eligibility requirements for members; limit the number of staff employed by council; and introduce rules for city-council campaigns, including contribution limits and guaranteed time on public-access television.

{¶ 4} The city attorney reviewed the petition in May 2017, as required by Columbus Charter 42-5. In a memorandum to the city clerk and council members, the city attorney stated his opinion that the petition violates the one-proposal rule, which provides that "[a] petition may only contain one proposal, which shall not address multiple or unrelated subject matters." Columbus Charter 42-2(d). Relators knew of the city attorney's concerns in May 2017, as shown in a letter dated May 16, 2017, in which their attorney expressed his disagreement with the city attorney's determination.

{¶ 5} Relators circulated the petition for signatures, and on February 6, 2018, Beard filed signed part-petitions with the city clerk. The Franklin County Board of Elections validated a sufficient number of signatures for the proposal to be placed on the May 8 ballot.

{¶ 6} On February 26, as required by Columbus Charter 42-9, the city attorney advised the city clerk and the city council on the legal sufficiency of the petition. In this memorandum, the city attorney again stated his opinion that the "petition violates the single-subject requirement." Based on his conclusion that the petition is not legally sufficient, the city attorney told the council that it could "reject forwarding these proposed amendments to the City Charter to the Board of Elections for voter consideration." The same day, the council passed an ordinance providing that the proposed charter amendment would not be placed on the May 8 ballot.

{¶ 7} Relators filed this original action for a writ of mandamus on March 5.

II. Arguments of the Parties Regarding Issuance of Writs of Mandamus

{¶ 8} Relators argue, relying on jurisprudence interpreting the one-subject rule in Article II, Section 15(D), of the Ohio Constitution, that the proposed charter amendments do not violate the one-proposal rule, because the provisions all share a "common purpose, which is the comprehensive improvement of Columbus City Council." Respondent members of the city council argue that we need not reach the merits of relators' claim, because it is barred under the doctrine of laches. Respondents also assert that this court should not follow the constitutional-one-subject-rule jurisprudence, because the one-subject rule "is not applicable" here. The council members argue that the proposed amendment fails because it contains "disjointed and unrelated topics and subjects." Respondent Franklin County Board of Elections argues that it carried out its legal obligation and duty by certifying the signatures on the petitions pursuant to the statutory framework governing charter-amendment initiatives and that it cannot place the issue on the ballot without city council acting first.

III. Relators' Motions

A. Motion for leave to file an amended complaint

{¶ 9} Relators moved for leave to amend their complaint to add as relators five additional members of Everyday People for Positive Change. This request is governed by Civ.R. 15(A), which provides that leave to amend shall be freely given "when justice so requires." See Tatman v. Fairfield Cty. Bd. of Elections , 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 7. Given the policy favoring the amendment of pleadings, and because the amended complaint does not change the substantive issues in this case or delay its resolution, we grant the motion. See State ex rel. Hackworth v. Hughes , 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 26-27.

B. Motions for leave to file amended affidavits

{¶ 10} In their brief, the council members argue that we should deny the writs because the affidavit supporting relators' complaint does not comply with S.Ct.Prac.R. 12.02(B)(2), which requires an affidavit supporting an original-action complaint to "be made on personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that the affiant is competent to testify to all matters stated in the affidavit." As the council members point out, we have "routinely dismissed original actions, other than habeas corpus, that were not supported by an affidavit expressly stating that the facts in the complaint were based on the affiant's personal knowledge." Hackworth at ¶ 24. "An affidavit that is made 'to the best of' an affiant's 'personal knowledge and information' does not satisfy S.Ct.Prac.R. 12.02(B)(2), because that type of statement does not make clear 'which allegations are based on personal knowledge and which allegations are based simply on information.' " State ex rel. Simonetti v. Summit Cty. Bd. of Elections , 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 11, quoting State ex rel. Commt. for the Charter Amendment for an Elected Law Dir. v. Bay Village , 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 13.

{¶ 11} In the affidavit filed with the complaint in this case, Beard said, "The statements that I make in this Affidavit are based upon my personal knowledge or upon information that I believe to be true ." (Emphasis added.) Because the affidavit is qualified in this way, it does not comply with S.Ct.Prac.R. 12.02(B)(2). In addition, an affidavit made by Beard that was submitted by relators as evidence fails to comply with S.Ct.Prac.R. 12.06 because it has the same defect.

{¶ 12} Relators filed two motions to amend and two new affidavits to address these problems. The new affidavits remove the offending language that qualifies the statements as based on information that Beard "believe[s] to be true"; therefore, they comply with S.Ct.Prac.R. 12.02(B)(2) and 12.06. But they also include other, relatively minor changes. Most notably, they state, "All the electors who signed the petition reside in Franklin County, Ohio. None of the electors who signed the petition reside in Delaware County, Ohio or in Fairfield County, Ohio." It will become evident later that these substantive changes are not material to our analysis.

{¶ 13} We ordinarily allow relators an opportunity to cure noncompliance with the personal-knowledge requirement. See State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 14. Therefore, because the other changes to the affidavits are immaterial, we grant the motions related to Beard's affidavits. Now that that defect has been cured, we reject the council members' argument that the writ should be denied for noncompliance with S.Ct.Prac.R. 12.02(B)(2).

IV. Law and Analysis

A. Laches

{¶ 14} We have applied laches in elections cases, which require relators to act with "[e]xtreme diligence and promptness." State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections , 86 Ohio St.3d 107, 113, 712 N.E.2d 696 (1999). "The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party." State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections , 74 Ohio St.3d 143, 145, 656 N.E.2d 1277 (1995).

{¶ 15} In claiming laches, the council members emphasize that the city attorney first opined that the proposed amendment violates the one-proposal rule in May 2017, soon after relators filed their precirculated petition with the city clerk. They say that relators delayed in challenging the city's determination by nearly ten months. We reject this argument because the council members fail to identify what action relators could have taken before now.

{¶ 16} The two most obvious possible causes of action-mandamus and declaratory judgment-would have been unavailable to relators in May 2017. For a mandamus claim to succeed, a relator must have a clear legal right to, and the respondent must have a clear legal duty to provide, the relief requested. State ex rel. Linnabary v. Husted , 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. Relators' desired outcome here is for the proposed charter amendment to be placed on the ballot, and the city council's role toward that end is to pass an ordinance. See Columbus Charter 42-11. But the council clearly had no duty to provide that relief back in May 2017, before the petition had even been circulated. Indeed, Columbus's process does not even require the city clerk, the city attorney, or the city council to approve the form of a petition before it may be circulated for signatures. Because the city attorney's May 2017 opinion did not prevent relators from taking the next step in the petition process, a mandamus action would have been both unnecessary and ineffective at that time.

{¶ 17} Our holding in State ex rel. Barren v. Brown , 51 Ohio St.2d 169, 365 N.E.2d 887 (1977), which the council members cite in their brief, does not require us to change our conclusion. That case involved the attorney general's decision not to certify ballot language for a referendum petition under R.C. 3519.01. Id. at 169-170, 365 N.E.2d 887. Unlike the council in this case, the attorney general had a clear legal duty, arising under the statute, to certify the ballot language. No city official had a clear legal duty to approve the form of relators' petition in May 2017.

{¶ 18} Relators could not have brought a valid declaratory-judgment action based on the city attorney's legal determination. A declaratory-judgment action requires, among other things, the existence of a real controversy between adverse parties. Fairview Gen. Hosp. v. Fletcher , 63 Ohio St.3d 146, 148-149, 586 N.E.2d 80 (1992). The parties here are relators on one side and the city council-the legislative body empowered to place the proposed charter amendment on the ballot, see Columbus Charter 45-1-and the board of elections on the other. In May 2017, the council did not take a position on the sufficiency of relators' petition; only the city attorney had done that. And the city attorney merely advised the council concerning his opinion about the petition. Nothing in the record shows that the council-a political body consisting of seven members-would later accept the city attorney's advice and reject the petition once signatures were gathered. Therefore, in May 2017, there was no clear or real controversy between the adverse parties in this action.

{¶ 19} Relators are correct in their argument that their first opportunity to assert their rights arose when the city council passed an ordinance rejecting the petition to place the proposed charter amendments on the ballot on February 26. The council members do not argue that the lapse of time between that event and the filing of this action-just seven days-was unreasonable. We hold, therefore, that relators' claim is not barred under the doctrine of laches.

B. Charter amendments

{¶ 20} A municipality may adopt a charter for local self-government upon approval of its electors. Ohio Constitution, Article XVIII, Sections 7 and 8. Once adopted, a charter may be amended only with the electors' approval.

Ohio Constitution, Article XVIII, Section 9. One way for a proposed charter amendment to reach the ballot is for at least 10 percent of the electors who voted in the most recent general municipal election to sign a petition calling for submission of the proposal. Ohio Constitution, Article XVIII, Sections 9 and 14. When a sufficient number of electors sign the petition, the municipality's legislative authority, by ordinance, shall submit the proposal to the electorate. Ohio Constitution, Article XVIII, Sections 8 and 9.

{¶ 21} Columbus's charter prescribes additional rules for proposing a charter amendment by petition. See Morris v. Macedonia City Council , 71 Ohio St.3d 52, 55, 641 N.E.2d 1075 (1994) ("Procedures may be added to the constitutional amendment process if the additions do not conflict with the Ohio Constitution"). One of those rules-that "[a] petition may only contain one proposal, which shall not address multiple or unrelated subject matters or questions of law," Columbus Charter 42-2(d)-is central to this case.

{¶ 22} Columbus's process for initiating a proposed amendment by petition begins with the formation of a "petition committee," consisting of five electors, that "represent[s] the petitioners in all matters relating to" the petition. Columbus Charter 42-3. Before circulating a petition for signatures, the petition committee must file a certified copy of the petition with the city clerk. Columbus Charter 42-4. The city clerk must "forward the certified copy of the petition forthwith to the city attorney and the members of council," at which point "[t]he city attorney shall determine if the petition addresses a single subject and meets the requirements as to form." Columbus Charter 42-5. The city attorney is required to report his findings to the city clerk and the members of council, id. , but the charter does not require the city clerk, the city attorney, or the council to approve the form of the petition before it may be circulated for signatures.

{¶ 23} Once signatures have been obtained, the part-petitions must be filed with the city clerk. Columbus Charter 42-7. The city clerk forwards the petition to the elections authority for validation of signatures and to the city attorney "to advise on the legal sufficiency of the petition, based upon any applicable local, state or federal laws, rules or regulations." Columbus Charter 42-9. When the city clerk receives the elections authority's report and the city attorney's findings, she must forward them to the city council. Id. The council then, by ordinance, must either approve or reject the petition to place the proposed charter amendment on the ballot. Columbus Charter 42-11, 45, and 45-1.

1. Claim against the council members

{¶ 24} To prevail in this mandamus case, relators must prove, by clear and convincing evidence, that they have a clear legal right to have their proposed charter amendment placed on the May 8 ballot, that the council members are under a clear legal duty to provide that relief, and that relators have no adequate remedy in the ordinary course of the law. Linnabary , 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, at ¶ 13. Given the proximity of the May 8 election, relators lack an adequate remedy in the ordinary course of the law. State ex rel. Greene v. Montgomery Cty. Bd. of Elections , 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.

{¶ 25} The city charter provides that "[p]roposed amendments to this charter shall be submitted by the council forthwith upon a petition signed by electors of the city equal to not less than ten percent of the total vote cast at the last preceding regular municipal election." Columbus Charter 45. It further provides:

Upon receipt of the report regarding the validation of signatures, the city clerk shall read a summary of the same into the record. The council shall forthwith determine the sufficiency of the petition. Should the council find such petition sufficient, it shall forthwith by ordinance provide for the submission of such proposed charter amendment to a vote of the electors of the city.

Columbus Charter 45-1. Therefore, the council's legal duty to approve the petition to place the proposed charter amendments on the ballot is clear, but the duty arises only if it finds that relators' petition is "sufficient."

{¶ 26} The city council found that the petition was not sufficient for one reason-because it violates the one-proposal rule for amending the charter amendment by petition. Columbus Charter 42-2(d) provides: "A petition may only contain one proposal, which shall not address multiple or unrelated subject matters * * *." Based on the arguments presented by the parties, the only question before us is whether council correctly determined that the proposed charter amendment addresses multiple or unrelated subject matters.

{¶ 27} "In construing charter provisions, we apply 'general laws regarding statutory interpretation, including construing charter language according to its ordinary and common usage.' " State ex rel. Paluch v. Zita , 141 Ohio St.3d 123, 2014-Ohio-4529, 22 N.E.3d 1050, ¶ 21, quoting State ex rel. Commt. for Proposed Ordinance to Repeal Ordinance No. 146-02, W. End Blight Designation v. Lakewood , 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, ¶ 19. When "the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to rules of statutory interpretation [because an] unambiguous statute is to be applied, not interpreted." Sears v. Weimer , 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.

{¶ 28} This case presents a straightforward application of the rules of construction to the Columbus City Charter. A "proposal" may be "something put forward for consideration or acceptance." Webster's Third New International Dictionary 1819 (2002). Here, however, the word "proposal" does not stand alone; it is modified by the clause "shall not address multiple or unrelated subject matters." Columbus Charter 42-2(d).

{¶ 29} "Subject matter" is defined as "[t]he issue presented for consideration." Black's Law Dictionary 1652 (10th Ed.2014). And the phrase "subject matter" is modified in the disjunctive by the words "multiple" and "unrelated." Columbus Charter 42-2(d). The common meaning of multiple is more than one. "Unrelated" can be defined as "discrete, disjoined, [or] separate." Webster's Third New International Dictionary 2507 (2002).

{¶ 30} The title of relators' proposed city-charter amendment begins, "To enact electoral system and related administrative changes to Cols. City Council * * *." The 11 proposed amendments address three distinct "subject matters," including changing council's composition as a body (i.e., adding seats and introducing districts), changing its administrative support (i.e., staffing limits), and changing its selection (i.e., campaign finance and public-access television).

{¶ 31} The proposed charter amendments are related to the number of members serving on the city council, and whether those members represent the city at large or by district relate to the composition of the council as a body. However, these provisions, which change the composition of the council body, are not related to a limit on the number of employees hired by the council, because the employees do not serve as members of the council. Similarly, campaign reforms-namely, campaign-contribution limits and broadcast time on public-access TV during a campaign-affect candidates for the council, not the composition of the council body or the council employees. Moreover, campaign reforms may also affect candidates for the city council who will never be elected to serve on the council body, so these provisions do not relate to the composition of the council body or the council's employees. Therefore, construing the plain and unambiguous language of the charter, the proposed city-charter amendments are "multiple" and "unrelated." Columbus Charter 42-2(d).

{¶ 32} Contrary to relators' arguments that the proposed city-charter amendments satisfy Columbus Charter 42-2(d) because they "have a commonality or unity of purpose," the language of the Columbus City Charter requires that a proposal "shall not address multiple or unrelated subject matters or questions of law." Columbus Charter 42-2(d). To accept relators' argument, this court would have to ignore or replace the coordinating conjunction "or" in the phrase "multiple or unrelated subject matters." Id. However, "[i]n matters of construction, it is the duty of this court to give effect to the words used, not to delete words used or to insert words not used ." (Emphasis added.) Cleveland Elec. Illum. Co. v. Cleveland , 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus. The word "or" in Columbus Charter 42-2(d) cannot be read as "and." The proposed city-charter amendment violates the limiting language of the one-proposal rule for two independent reasons. Therefore, relators' petition is insufficient on two different grounds and the council had no clear legal to place relators' proposed charter amendment on the ballot.

2. Claim against the board of elections

{¶ 33} To prevail against the board of elections, relators must prove that they have a clear legal right to have their proposed charter amendment placed on the May 8 ballot and that the board has a clear legal duty to provide that relief. Linnabary , 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, at ¶ 13. Relators have not met their burden with respect to the board of elections, because it has no clear legal duty to place the proposed charter amendment on the ballot.

{¶ 34} The city charter required the city clerk to forward the signed petition to the board of elections for validation of signatures. Columbus Charter 42-9. It is undisputed that the board carried out its duty when it confirmed that a sufficient number of valid signatures appear on the petition. After the board notifies the city clerk of its findings, it does not have any other duties with respect to the petition unless the city council passes an ordinance approving the placement of the amendment on the ballot. See Columbus Charter 42-11, 45-1, and 45-2; Ohio Constitution, Article XVIII, Sections 8 and 9 (providing that proposed municipal-charter amendments shall be submitted by the municipality's legislative authority by ordinance). Because the council has not passed such an ordinance, relators have no claim against the board of elections.

{¶ 35} Finally, the council members argue that we should dismiss this case because relators did not name the Fairfield County Board of Elections and the Delaware County Board of Elections as respondents. The city of Columbus, the council members point out, extends into those counties as well. Because we reject relators'

claim against the Franklin County Board of Elections, there is no need for us to address relators' alleged failure to name all necessary respondents.

V. Conclusion

{¶ 36} Relators' petition is insufficient because it does not comply with the plain and unambiguous language of the one-proposal rule in Columbus Charter 42-2(d). Therefore, the Columbus City Council has no clear legal duty to place relators' proposed charter amendment on the ballot. The Franklin County Board of Elections has no clear legal duty to place the proposed charter amendment on the ballot because the city council had not passed an ordinance approving the placement of the amendment on the ballot. For these reasons, the writs of mandamus are denied.

Motions granted and writs denied.

O'Donnell and DeGenaro, JJ., concur.

Fischer, J., concurs in judgment only, with an opinion.

O'Connor, C.J., and French and DeWine, JJ., concur in judgment in part and dissent in part and would grant the petition in part and grant a writ of mandamus ordering the Columbus City Council to submit relators' proposed amendment to the Columbus City Charter for a vote of the electors in the May 8, 2018 primary election.

{¶ 37} Although I would employ a somewhat different analytical approach than that used in the lead opinion, I concur in the judgment denying the writs of mandamus. I write separately to note that relators Jonathan C. Beard, a member of the committee in support of an initiative petition, Everyday People for Positive Change, the committee itself, and five other members of the committee are not challenging the Columbus City Council's authority to disapprove the petition based on the council's determination that the proposal violates the one-proposal rule. When considering a petition for a proposed charter amendment, a city council's constitutional authority is circumscribed: its review "is limited to matters of form, not substance." Morris v. Macedonia City Council , 71 Ohio St.3d 52, 55, 641 N.E.2d 1075 (1994). "A city council may not engage in judicial or quasi-judicial determinations * * *." Id. Our prior cases have suggested that a possible violation of similar one-subject rules is a question of substance, not form. See State ex rel. Kilby v. Summit Cty. Bd. of Elections , 133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d 590, ¶ 12 ; State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections , 80 Ohio St.3d 165, 169, 685 N.E.2d 224 (1997).

{¶ 38} Relators do not argue that council lacks the authority to exclude the proposal from the ballot; instead, relators simply argue that council's determination was incorrect. I write to make clear that because relators have not challenged council's authority to decide the one-proposal question, this court has not decided in this case whether council had that authority. See Sizemore v. Smith , 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2 ("It has long been the policy of this court not to address issues not raised by the parties").

{¶ 39} I accordingly concur in judgment only.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The STATE EX REL. KHUMPRAKOB et al. v. MAHONING COUNTY BOARD OF ELECTIONS et al.
    No. 2018-0404
    Supreme Court of Ohio.
    Submitted April 12, 2018 Decided April 24, 2018
    Terry J. Lodge and Jensen Silvis, for relators.
    Paul J. Gains, Mahoning County Prosecuting Attorney, and Sharon K. Hackett, Linette M. Stratford, and Mark D'Apolito, Assistant Prosecuting Attorneys, for respondents.
    Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, and Kathleen M. Trafford ; and McTigue & Colombo, L.L.C., Donald J. McTigue, Columbus, and Ben F.C. Wallace, urging denial of the writ for amici curiae Affiliated Construction Trades Ohio Foundation, Ohio Chamber of Commerce, and American Petroleum Institute.
    Mangano Law Offices Co., L.P.A., Joseph J. Guarino III, and Ryan K. Hymore, Cleveland, urging denial of the writ for amici curiae Western Reserve Building and Construction Trades Council (Youngstown Warren Regional Chamber), Youngstown Warren Black Caucus, Community Mobilization Coalition, and Mahoning Trumbull AFL-CIO.
   Per Curiam.

{¶ 1} In this case, relators, four Youngstown electors, seek a writ of mandamus to compel respondents, the Mahoning County Board of Elections and its members (collectively, "the board"), to place a proposed amendment to the Youngstown city charter-a so-called "Youngstown Drinking Water Protection Bill of Rights"-on the May 2018 ballot. The proposed charter amendment, if adopted by Youngtown's electors, would in general terms (1) recognize certain rights of Youngstown residents and of "ecosystems and natural communities within the city" to "clean water, air, and soil" and to be free from certain fossil-fuel drilling and extraction activities, (2) require the city to prosecute violations of the amendment and allow the city to recover attorney fees and experts' costs incurred in prosecuting violations, (3) impose strict liability on any government or corporation that violates the rights established by the amendment, (4) restrict the use of funds allocated to the city's water and sewer infrastructure, and (5) give the people of Youngstown the right "to compel their governments to protect their rights, health, and safety."

{¶ 2} On February 12, 2018, the committee formed to have the measure placed on the ballot submitted its part-petitions to the Youngstown city clerk. After the board certified a sufficient number of valid signatures to qualify the measure for the ballot, the Youngstown City Council passed an ordinance instructing the board to place the proposed charter amendment on the May 2018 ballot. But the board, finding that the proposed amendment "contains provisions that are beyond the scope of the City of Youngstown's power" to enact, voted not to place the proposed amendment on the ballot.

{¶ 3} On March 16, relators filed this original action for a writ of mandamus to compel the board to place the proposed charter amendment on the ballot.

{¶ 4} To be entitled to a writ of mandamus, relators must prove, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. When we review a decision of a county board of elections, the standard is whether the elections board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. {¶ 5} We addressed a similar issue last year in State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, which involved an earlier version of the Youngstown Drinking Water Protection Bill of Rights. Like the current proposal, the version at issue in Flak would have given Youngstown residents and the " 'ecosystems and natural communities within the city' " the right to " 'clean water, air, and soil' " and to be free from certain fossil-fuel drilling and extraction activities. Id. at ¶ 4, quoting the proposed charter amendment at issue in that case. The former proposal also would have authorized "private citizens to enforce their rights through nonviolent direct action or by filing suit as a private attorney general." Id.

{¶ 6} In Flak , applying our caselaw that preceded the enactment of 2016 Sub.H.B. No. 463, we examined whether the board had abused its discretion in determining that the measure was outside the municipality's legislative authority. See Flak at ¶ 9, 17. We agreed with the board's determination that a municipality lacks legislative power to authorize Youngstown residents to file suit as a "private attorney general," because a municipality cannot create a new cause of action. Id. at ¶ 15-16.

{¶ 7} Significantly, the offending provision in Flak is not included in the proposed charter amendment now before us, and the board offers no clear support for its conclusion that relators' current proposal is beyond the scope of the city's legislative power. The hearing transcript reveals that two members of the board decided this matter on the basis of Flak , but there was no creation of a private right of action-an "individual's right to sue in a personal capacity to enforce a legal claim," Black's Law Dictionary 1520 (10th Ed.2014)-in this case.

{¶ 8} A municipality retains the ability to "make the violation of any of its ordinances a misdemeanor, and provide for the punishment thereof by fine or imprisonment, or both." R.C. 715.67. The proposed charter amendment's requirement that the city prosecute violations of the amendment committed by corporations and its establishment of a strict-liability mens rea for violations may become elements of future ordinances. But as presented to the board, the proposed amendment's provisions are vague and largely aspirational. They do nothing without further legislative action by the city. Thus, although the proposed amendment would not necessarily be constitutional or legally enforceable if enacted, the board abused its discretion in finding that the measure exceeds Youngstown's legislative power.

{¶ 9} We hold that relators have a clear legal right to have their proposal placed on the ballot and that the board has a clear legal duty to provide that relief. Also, because relators could not have challenged the board's action until the board voted to exclude the proposed measure from the ballot, we hold that relators lack an adequate remedy in the ordinary course of the law.

Writ granted.

O'Connor, C.J., and Kennedy, DeWine, and DeGenaro, JJ., concur.

Fischer, J., concurs in judgment only, with an opinion.

French, J., dissents, with an opinion joined by O'Donnell, J.

{¶ 10} I write separately to make clear my reasons for agreeing with this court's judgment in this case.

{¶ 11} Last year, this court held that respondents, the Mahoning County Board of Elections and its members (collectively, "the board"), did not violate a clear legal duty when they excluded a "Youngstown Drinking Water Protection Bill of Rights" from the November 2017 ballot. State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, ¶ 16, citing State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections , 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696. In denying a writ of mandamus, the court held, as it had previously, that a county board of elections has authority, under R.C. 3501.11(K)(1), " 'to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative.' " Id. at ¶ 11, quoting State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9. The court determined that the board had not abused its discretion in exercising that authority. Id. at ¶ 9, 18.

{¶ 12} This case presents an opportunity for us to reexamine this court's prior interpretation of R.C. 3501.11(K)(1), to determine whether that interpretation is inconsistent with the separation-of-powers doctrine. I would conclude that it is and would overrule Youngstown , Sensible Norwood , and Flak to the extent that they construe R.C. 3501.11(K)(1) as authorizing and requiring boards of elections to determine whether a proposed measure exceeds a municipality's legislative power. I also would hold that certain provisions enacted through 2016 Sub.H.B. No. 463 ("H.B. 463") are unconstitutional to the extent that they purport to grant that authority to boards of elections.

{¶ 13} The Youngstown city charter provides that proposed amendments to the charter must be submitted to the city's electors "in the manner provided by the Constitution and laws of the State of Ohio." Youngstown Charter 120. Municipal electors have a constitutional right to initiate, by petition, a proposed amendment to their municipality's charter.

State ex rel. Beard v. Hardin , 153 Ohio St.3d 571, 2018-Ohio-1286, 109 N.E.3d 1174, ¶ 20 (lead opinion), citing Ohio Constitution, Article XVIII, Sections 9 and 14. "When a sufficient number of electors sign the petition, the municipality's legislative authority, by ordinance, shall submit the proposal to the electorate." Id. , citing Ohio Constitution, Article XVIII, Sections 8 and 9.

{¶ 14} Relators, four Youngstown electors, argue that they have a clear right to have their proposed charter amendment placed on the ballot because their petition satisfies the signature requirement and Youngstown City Council passed an ordinance calling for placement of the measure on the ballot. They contend that R.C. 731.28 gives the board only a ministerial role, with no authority to exclude a measure from the ballot for substantive legal reasons. Also, relying on the separation-of-powers doctrine and State ex rel. Espen v. Wood Cty. Bd. of Elections , --- Ohio St.3d ----, 2017-Ohio-8223, --- N.E.3d ---- (lead opinion), relators argue that the board lacks constitutional authority to decide substantive legal questions. They assert that recent statutory amendments enacted through H.B. 463, which purport to authorize and require boards of elections to make certain legal determinations, are unconstitutional.

{¶ 15} Espen does not resolve this case, because the lead opinion in that case, joined by only three justices, did not articulate a holding of this court. But relators' argument that we should overrule this court's earlier caselaw and declare aspects of H.B. 463 unconstitutional for being inconsistent with the separation-of-powers doctrine is nevertheless convincing.

{¶ 16} In Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus, we identified three questions that help determine whether to overrule a prior decision: First, was the earlier decision wrongly decided at that time, or do changes in circumstances no longer justify continued adherence to the decision? Second, does the decision defy practical workability? And third, would abandoning the precedent create an undue hardship for those who have relied on it?

{¶ 17} First, I believe that Youngstown , Sensible Norwood , and Flak were wrongly decided at the time. In Youngstown , this court considered whether the board abused its discretion in excluding from the ballot a proposed amendment to the Youngstown city charter that would have made it unlawful within the city to extract oil and gas through hydrofracturing. 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229. In that case, the board had sought to apply State ex rel. Morrison v. Beck Energy Corp. , 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, ¶ 34 (lead opinion), which concluded that the Home Rule Amendment, Ohio Constitution, Article XVIII, Section 3, does not allow a municipality to enact an ordinance that impedes or obstructs oil-and-gas-production operations that the state has permitted under R.C. Chapter 1509. Youngstown at ¶ 4.

{¶ 18} In Youngstown , the court considered the extent of the board's authority to substantively review a proposed ballot measure under former R.C. 3501.11(K) (now R.C. 3501.11(K)(1) ), which grants boards of elections authority to "[r]eview, examine, and certify the sufficiency and validity of petitions." The court concluded that this statutory authority "empowers a board of elections to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative." Youngstown at ¶ 9. But the court held that boards of elections "do not have authority to sit as arbiters of the legality or constitutionality of a ballot measure's substantive terms." (Emphasis sic.) Id. at ¶ 11. The court explained:

An unconstitutional amendment may be a proper item for referendum or initiative. Such an amendment becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction. Any other conclusion would authorize a board of elections to adjudicate a constitutional question and require this court to affirm its decision even if the court disagreed with the board's conclusion on the underlying constitutional question, so long as the board had not abused its discretion.

Id. Because the board had expressly excluded the ballot measure based on its view that the measure would be unconstitutional if enacted, the court granted a writ of mandamus compelling the board to place the measure on the ballot. Id. at ¶ 12.

{¶ 19} A year later, in Sensible Norwood , this court again considered the extent of a board of elections' authority under former R.C. 3501.11(K) to exclude a municipal initiative from the ballot. 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696, at ¶ 6. Sensible Norwood involved a proposed municipal ordinance that, among other things, would have made the possession of marijuana a fifth-degree felony. Id. at ¶ 11. The court cited Article II, Section 1f of the Ohio Constitution, id. at ¶ 9, which reserves to municipal electors the right to submit questions by initiative petition but limits that right only to questions "municipalities may now or hereafter be authorized by law to control by legislative action." The court held that because a municipality lacks authority to define a felony, the proposed ordinance was "beyond the scope of a municipality's authority to enact." Id. at ¶ 10, 22. Thus, although the court did not cite Youngstown in Sensible Norwood , it applied the distinction the earlier decision had recognized-that a board of elections has authority to exclude a ballot measure based on its determination that the measure is beyond the scope of the municipality's power to enact, but it lacks authority to exclude a measure based on its determination that the measure would be unconstitutional if enacted. {¶ 20} Through H.B. 463, effective April 6, 2017, the General Assembly enacted changes relevant to an elections board's authority and duty to review a proposed ballot measure's substantive terms.

{¶ 21} The act added R.C. 3501.11(K)(2), which provides that a board of elections shall

[e]xamine each initiative petition, or a petition filed under section 307.94 or 307.95 of the Revised Code, received by the board to determine whether the petition falls within the scope of authority to enact via initiative and whether the petition satisfies the statutory prerequisites to place the issue on the ballot, as described in division (M) of section 3501.38 of the Revised Code. The petition shall be invalid if any portion of the petition is not within the initiative power.

Before the amendment, as noted in Youngstown and Sensible Norwood , former R.C. 3501.11(K) simply required a board of elections to "[r]eview, examine, and certify the sufficiency and validity of petitions and nomination papers, and, after certification, return to the secretary of state all petitions and nomination papers that the secretary of state forwarded to the board." 2013 Am.Sub.H.B. No. 109. H.B. 463 retained that language, recodifying it as R.C. 3501.11(K)(1).

{¶ 22} H.B. 463 also added R.C. 3501.38(M), which R.C. 3501.11(K)(2) cross-references. Relevant here is R.C. 3501.38(M)(1)(a), which requires a board of elections, upon receiving a municipal initiative petition, to examine the petition to determine

[w]hether the petition falls within the scope of a municipal political subdivision's authority to enact via initiative, including, if applicable, the limitations placed by Sections 3 and 7 of Article XVIII of the Ohio Constitution on the authority of municipal corporations to adopt local police, sanitary, and other similar regulations as are not in conflict with general laws, and whether the petition satisfies the statutory prerequisites to place the issue on the ballot. The petition shall be invalid if any portion of the petition is not within the initiative power.

{¶ 23} Finally, H.B. 463 amended R.C. 3501.39(A), which now provides:

[A] board of elections shall accept any petition described in section 3501.38 of the Revised Code unless one of the following occurs:
* * *
(3) In the case of an initiative petition received by the board of elections, the petition falls outside the scope of authority to enact via initiative or does not satisfy the statutory prerequisites to place the issue on the ballot, as described in division (M) of section 3501.38 of the Revised Code. The petition shall be invalid if any portion of the petition is not within the initiative power.

{¶ 24} In October 2017, we considered two cases involving municipal initiatives in which aspects of these H.B. 463 amendments were challenged as unconstitutional. First, in Flak , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, we considered whether the board abused its discretion in excluding from the ballot an earlier version of the Youngstown Drinking Water Protection Bill of Rights. The majority opinion in Flak emphasized that under the plain language of the Home Rule Amendment and Ohio Constitution, Article II, Section 1f, municipal electors' initiative power is limited only to matters that constitute permissible municipal legislative action. Id. at ¶ 10. The court then reaffirmed its prior holding that an elections board's statutory authority to "[r]eview, examine, and certify the sufficiency and validity of petitions," R.C. 3501.11(K)(1) (formerly R.C. 3501.11(K) ), empowers an elections board " 'to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative.' " Id. at ¶ 11, quoting Youngstown , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, at ¶ 9. The court concluded that the board did not abuse its discretion in exercising that authority because the proposal at issue would have exceeded Youngstown's legislative power by creating a new cause of action allowing citizens to enforce their rights "through nonviolent direct action or by filing suit as a private attorney general." Id. at ¶ 4, 15-16.

{¶ 25} Less than two weeks later, we decided Espen , --- Ohio St.3d ----, 2017-Ohio-8223, --- N.E.3d ----, another case involving the scope of an elections board's authority to determine substantive legal questions. In Espen , a board of elections voted to place a proposed city-charter amendment on the ballot and later overruled a protester's argument that the measure included provisions that exceed the municipality's power to enact. Id. at ¶ 2-3, 10-12. We denied writs of mandamus and prohibition, thus allowing the measure to remain on the ballot. See id. at ¶ 25. The lead opinion in Espen concluded that R.C. 3501.38(M)(1)(a) violates the separation-of-powers doctrine to the extent that it "authorizes and requires boards of elections to make substantive, preenactment legal evaluations." Id. at ¶ 15.

{¶ 26} In Youngstown , Sensible Norwood , and Flak , this court construed R.C. 3501.11(K)(1) (formerly R.C. 3501.11(K) ), which requires elections boards to "[r]eview, examine, and certify the sufficiency and validity of petitions," as authorizing elections boards to determine whether a ballot measure exceeds a municipality's legislative power. Flak at ¶ 11 ; Sensible Norwood , 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696, at ¶ 6 ; Youngstown at ¶ 9. But those decisions do not demonstrate why the statutory language compels that conclusion. I believe that the court's prior construction of R.C. 3501.11(K)(1) in those cases is inconsistent with the separation-of-powers doctrine.

{¶ 27} "The separation-of-powers doctrine represents the constitutional diffusion of power within our tripartite government. The doctrine was a deliberate design to secure liberty by simultaneously fostering autonomy and comity, as well as interdependence and independence, among the three branches." Norwood v. Horney , 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114. The doctrine is "implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government." S. Euclid v. Jemison , 28 Ohio St.3d 157, 159, 503 N.E.2d 136 (1986). The separation-of-powers doctrine is designed to prevent a primary and intrinsic threat: the concentration of power in a single branch of government. See The Federalist No. 47 at 313 (Cosimo Ed.2006).

{¶ 28} Relators, through their initiative petition, seek to exercise municipal legislative power. Their authority to exercise that power arises from two provisions in the Ohio Constitution: Article XVIII, Section 3 authorizes municipalities "to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws," and Article II, Section 1f"reserve[s] to the people" the power to initiate measures "on all questions which * * * municipalities may now or hereafter be authorized by law to control by legislative action." As the court recognized in Flak , the language of Article II, Section 1f limits the permissible subject matter of a municipal initiative petition. 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, at ¶ 10.

{¶ 29} The primary question here is who decides that a measure initiated by electors exceeds a municipality's legislative power. To answer that question, it is important first to understand the nature of the decision that was made here. In this case, the board excluded relators' measure from the ballot, concluding that it was "beyond the scope of the City of Youngstown's power" to enact legislation. In its brief, the board further explains its view that "municipalities have no authority to act in areas that are reserved to the General Assembly or to the courts" and that "[m]unicipalities may not act in areas reserved to the power and authority of the state." The board argues, in essence, that it has authority to determine whether state law preempts local law in certain areas.

{¶ 30} Significantly, our home-rule jurisprudence has rejected the idea of general subject-area preemption. A municipality's powers under the Home Rule Amendment are the "broadest possible powers of self-government in connection with all matters which are strictly local." State ex rel. Hackley v. Edmonds , 150 Ohio St. 203, 212, 80 N.E.2d 769 (1948). Municipal legislative power is limited first by other constitutional provisions, Buckeye Community Hope Found. v. Cuyahoga Falls , 82 Ohio St.3d 539, 541-542, 697 N.E.2d 181 (1998), and second by general state laws that conflict with local provisions, Am. Fin. Servs. Assn. v. Cleveland , 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 31. In the absence of either a separate constitutional restriction on municipal power or a direct conflict with a general state law, a local ordinance is not preempted. See State ex rel. Rocky Ridge Dev., L.L.C. v. Winters , 151 Ohio St.3d 39, 2017-Ohio-7678, 85 N.E.3d 717, ¶ 13, citing Morrison , 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, at ¶ 24. Thus, in view of our home-rule jurisprudence, the H.B. 463 amendments discussed above purport to authorize elections boards to make legal determinations about subject-area preemption that even courts cannot make.

{¶ 31} In this light, it is apparent that our interpretation of R.C. 3501.11(K)(1) in Youngstown , Sensible Norwood , and Flak has facilitated the violation of the separation-of-powers doctrine, which is intended to uphold the "power and duty of the judiciary to determine the constitutionality and, therefore, the validity of the acts of the other branches of government," State ex rel. Ohio Academy of Trial Lawyers v. Sheward , 86 Ohio St.3d 451, 462, 715 N.E.2d 1062 (1999) ; see also Horney , 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, at ¶ 117 ("the judicial power resides exclusively in the judicial branch"). By interpreting R.C. 3501.11(K)(1) as empowering elections boards to determine whether a proposed ballot measure exceeds a municipality's legislative power, this court has authorized elections boards to make substantive, preenactment legal evaluations.

{¶ 32} But that is not the only separation-of-powers problem presented in this case. In addition to exercising judicial power, the board also has become involved in the legislative process. While the primary question here is who decides that proposed legislation exceeds municipal legislative power, the secondary question is when that decision is made. By making a substantive, preenactment legal evaluation of proposed municipal legislation, the board has interfered with the legislative process, too.

{¶ 33} We have long held that courts lack authority to judge the legality of proposed legislation. See Pfeifer v. Graves , 88 Ohio St. 473, 104 N.E. 529 (1913), paragraph five of the syllabus. Just as we cannot stop the General Assembly from considering a proposed law, we cannot allow an elections board to interfere in the legislative process initiated by the people. After all, the electorate's legislative power is more basic than the legislative power exercised by the legislative branch of government: legislative power is reserved to the people but delegated to the General Assembly and municipalities. Ohio Constitution, Article II, Sections 1 and 1f ; Article XVIII, Section 3.

{¶ 34} "[T]he judicial function does not begin until after the legislative process is completed." Ohio Academy of Trial Lawyers , 86 Ohio St.3d at 462, 715 N.E.2d 1062. That is why a court may not exercise judicial power to interfere with the legislative process. An arm of the executive branch cannot be allowed to wield judicial power to interfere with the legislative process either. To be sure, this court has the ultimate authority of judicial review over the board's decision in this mandamus action. But that does not solve the separation-of-powers problem here: it only places this court in a position it should not be in-judging the legality of proposed legislation before it has been enacted.

{¶ 35} I additionally note that authorizing elections boards to make substantive, preenactment legal evaluations raises questions about the proper standard of review. We have typically deferred to elections boards' determinations absent fraud or corruption, abuse of discretion, or clear disregard of the law. See State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. But we have also stated that "we need accord no deference to a board of elections' interpretation of state election law." State ex rel. McCord v. Delaware Cty. Bd. of Elections , 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 30, fn. 2. If we truly do apply a deferential abuse-of-discretion standard in these cases, we are ultimately relinquishing some authority in favor of boards of elections and facilitating inconsistent results among various boards of elections.

{¶ 36} Therefore, I would answer the first Galatis question in the affirmative: Youngstown , Sensible Norwood , and Flak were wrongly decided to the extent that they allowed boards of elections to decide whether a proposed municipal ballot measure exceeds a municipality's legislative power.

{¶ 37} I would also conclude that Youngstown , Sensible Norwood , and Flak defy practical workability. As discussed above, in Youngstown , Sensible Norwood , and Flak , this court held that under R.C. 3501.11(K)(1) (formerly R.C. 3501.11(K) ), elections boards have authority to decide whether a municipality lacks the power to enact a measure but not to decide whether a measure would be unconstitutional if enacted. See, e.g. , Youngstown , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, at ¶ 8-11. In upholding this distinction in Flak , the court acknowledged that

it is sometimes difficult to distinguish between a provision that a municipality is not authorized to adopt by legislative action (something an elections board may determine * * *) and one that is simply unconstitutional (something an elections board may not determine, per Youngstown * * *). But that is the line our caselaw has drawn.

Flak , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, at ¶ 14. I previously characterized the distinction as "unnecessarily confusing," "without meaning," and "unworkable." State ex rel. McGinn v. Walker , 151 Ohio St.3d 199, 2017-Ohio-7714, 87 N.E.3d 204, ¶ 34, 36 (Fischer, J., dissenting).

{¶ 38} Questions on both sides of the distinction can present home-rule issues, but there is no clear reason why elections boards have been allowed to decide questions on one side but not questions on the other. For example, in Youngstown , the question was whether the board could exclude a ballot measure based on its concern that the proposal was unconstitutional under Morrison , a case involving questions of municipal power under the Home Rule Amendment. Youngstown at ¶ 4. The question in Morrison had been whether a local ordinance conflicted with a general state law. 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, at ¶ 24. The court held in Youngstown that the board lacked authority to apply our home-rule analysis, because that is a judicial function. Youngstown at ¶ 11-12.

{¶ 39} That conclusion is hard to reconcile with other cases, such as Sensible Norwood and Flak , in which the elections boards framed the issue as a scope-of-municipal-authority question, see Sensible Norwood , 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696, at ¶ 4 ; Flak at ¶ 7. Indeed, it is puzzling why an elections board might have authority to make legal determinations about state-law preemption (even though we have rejected the concept) but lacks authority to determine a home-rule-conflict question (even if we have decided a case directly on point).

{¶ 40} Our existing caselaw on R.C. 3501.11(K)(1) has shown itself to be unworkable in one other way: as seen in the elections boards' decisions in Flak and Espen , it does not lead to consistent results among various county boards of elections. By leaving behind the interpretation of R.C. 3501.11(K)(1) articulated in Youngstown , Sensible Norwood , and Flak , this court not only would maintain the separation of powers but also would ensure greater uniformity in elections boards' decision-making throughout the state. Accordingly, I would answer the second Galatis question in the affirmative.

{¶ 41} Finally, I would answer the third Galatis question in the negative: there is no reason why elections boards cannot decide future cases under a more constrained scope of review without disruption or difficulty.

{¶ 42} Accordingly, I would overrule Youngstown , Sensible Norwood , and Flak to the extent that those decisions hold that R.C. 3501.11(K)(1) authorizes and requires elections boards to determine whether ballot measures are within the scope of a municipality's power to enact legislation. And because R.C. 3501.11(K)(2), 3501.38(M)(1)(a), and 3501.39(A)(3) track the language of this court's prior interpretation of R.C. 3501.11(K)(1), those statutes also require boards to make substantive legal determinations in violation of the separation-of-powers doctrine and are unconstitutional to that extent.

{¶ 43} In reaching this conclusion, I emphasize that this case involves an elections board's authority to make a substantive, preenactment legal determination that a proposed measure exceeds a municipality's legislative power. Because this case does not involve other types of initiative or referendum measures, there is no need to address them here, and I leave for the future any questions about elections-board review in those cases.

{¶ 44} Finally, I note that this court's judgment in this case does not validate the Youngstown Drinking Water Protection Bill of Rights. Indeed, even if adopted by Youngstown's electors, the proposal might not be constitutional or legally enforceable, and it could be beyond the scope of Youngstown's home-rule power. In my view, a county elections board lacks constitutional authority to make these decisions. It is understandable why some may desire to keep off the ballot a proposal such as this, with its questionable constitutionality and legality, but we must be vigilant in guarding against the executive branch's encroachment on the duties and powers of other branches of government. The course I propose would prevent the concentration of unaccountable power within county boards of elections by protecting the legislative power reserved to the people and preserving judicial review.

{¶ 45} Respectfully, I dissent.

{¶ 46} The question before us is whether respondents, Mahoning County Board of Elections and its members (collectively, "the board"), abused their discretion by refusing to certify the proposed charter amendment for placement on the May 8, 2018 ballot based on their determination that the amendment contains provisions that are beyond the scope of the city of Youngstown's legislative power. Plainly, the proposed amendment does contain provisions that are beyond the scope of the city's legislative power.

{¶ 47} The proposed Section 133(a) of the charter states that the city's citizens hold rights to be free from activities-including, for example, the drilling of fossil fuels-that interfere with specified rights to clean air and water. Section 133(b), if adopted, would require the city to prosecute "all violations of this Amendment by corporations." Section 133(c), if adopted, would hold any government or corporation that engaged in such activities "strictly liable for all resulting harms."

{¶ 48} This court has already determined that "a municipality is not authorized to create new causes of action." State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, ¶ 15. Because the proposed amendment purports to create new causes of action, I would hold that the board did not abuse its discretion and would deny the writ.

O'Donnell, J., concurs in the foregoing opinion.

      The four named relators are Mary C. Khumprakob, Hattie Wilkins, Lynn Anderson, and Susan L. Beiersdorfer.


text:
    GIANCOLA, Admr., Appellee, v. AZEM ; Walton Manor Health Care Center et al., Appellants.
    No. 2016-1584
    Supreme Court of Ohio.
    Submitted January 23, 2018 Decided May 3, 2018
    DiCello, Levitt & Casey, Mark A. DiCello, Robert DiCello, and Justin J. Hawal ; Mentor, and Marks, Balette, Giessel & Young, P.L.L.C., and Jacques G. Balette, Houston, for appellee Nathan Giancola.
    Marshall, Dennehey, Warner, Coleman & Goggin, Leslie M. Jenny, Jason P. Ferrante, and Teresa Ficken Sachs, Philadelphia, for appellants.

      On March 18, 2014, while the case was pending in the Eighth District Court of Appeals, the Cuyahoga County Court of Common Pleas granted a motion to substitute the proper party, Nathan Giancola, a newly named administrator of the estate of Nicholas Giancola, because of the death of Paulette Kolosai, the original administrator. Thus, Nathan Giancola has been substituted as a party.

   Kennedy, J.

{¶ 1} In this discretionary appeal from a judgment of the Eighth District Court of Appeals, we consider the limitations of the law-of-the-case doctrine. The law-of-the-case doctrine provides that legal questions resolved by a reviewing court in a prior appeal remain the law of that case for any subsequent proceedings at both the trial and appellate levels. Nolan v. Nolan , 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The decision of the appellate court in the first appeal in this case was limited to whether Nicholas Giancola's mother had apparent authority to sign an arbitration agreement on behalf of her son. Therefore, the law of the case from the first appeal was not relevant in the second appeal, because on remand from the first appeal, the trial court had relied on new evidence to decide that Giancola had signed the arbitration agreement. We reverse the Eighth District's judgment, which was based on the law-of-the-case doctrine, and we remand the matter to that court for review of the assignments of error that were not considered.

I. Case Background

A. First Proceeding in the Trial Court

{¶ 2} Giancola was admitted to Walton Manor Health Care Center on October 24, 2011. At the time of his admission, Giancola was suffering from multiple serious medical conditions. An admission agreement and an arbitration agreement were executed on October 28, 2011. Giancola remained at the care center until December 15. He later passed away on December 31, 2011. After his death, Paulette Kolosai, the first administrator of Giancola's estate, sued appellants, Cleveland Healthcare Group, Inc., Saber Healthcare Group, L.L.C., and Saber Healthcare Holdings, L.L.C. (collectively, "Walton Manor"), alleging both a survival claim and a wrongful-death claim. Kolosai claimed that Giancola's death was caused by injuries that he sustained while he was at Walton Manor.

{¶ 3} Walton Manor filed a motion to stay the civil proceedings and to compel arbitration based on the terms of the arbitration agreement, arguing that Giancola had entered into a binding arbitration agreement with Walton Manor.

{¶ 4} In opposition to the motion, Kolosai argued that the estate was not bound by the arbitration agreement because Giancola had not signed it and that the wrongful-death claim was not subject to arbitration. In support of her argument, Kolosai offered the deposition testimony of a Walton Manor employee who testified that Giancola's mother had signed the agreement. The trial court found that Giancola's mother had signed the arbitration agreement and that she had had apparent authority to bind her son to its terms. The trial court then granted Walton Manor's motion and ordered arbitration of the survival action. Kolosai appealed.

B. First Appeal: Kolosai I

{¶ 5} In the first appeal, Kolosai argued that the trial court had erred in finding that Giancola's mother had apparent authority to bind Giancola to arbitration.

{¶ 6} Walton Manor countered that Giancola, not his mother, had signed the arbitration agreement. Walton Manor attached documents to its brief that it argued proved that Giancola had signed the agreement. Kolosai v. Azem, 8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474, 2014 WL 5089062, ¶ 3 (" Kolosai I "). After acknowledging that Walton Manor could not supplement the record on appeal, the appellate court nevertheless noted that Walton Manor's argument-that Giancola had signed the agreement-was a concession that the trial court's opinion was erroneous. Id. at ¶ 8. The court of appeals stated that it would not "affirm the court on a basis that an appellee concedes is factually wrong." Id. at ¶ 9.

With Walton Manor being deemed to have withdrawn any argument that the court did not err by finding that the mother had apparent authority to bind Giancola to arbitrate any disputes arising from his care and treatment as a patient at the nursing home, we sustain the first assignment of error. The second assignment of error is moot.

Id. at ¶ 10. Thereafter, the court of appeals reversed and remanded for further proceedings consistent with its opinion. Id. at ¶ 11.

C. Second Proceeding in the Trial Court

{¶ 7} On remand, Walton Manor renewed its motion to stay the proceedings and submitted the supplemental documents previously presented to the court of appeals, along with a report from a handwriting expert, Robert Kullman. Kolosai responded by asserting that the law-of-the-case doctrine barred Walton Manor's argument, the supplemental documents were not new evidence under the Civ.R. 60(B)(2) standard for granting a new trial, Kullman's report was not reliable, and Walton Manor had waived its right to pursue arbitration by participating in depositions on the merits of the matter prior to submitting its renewed motion for arbitration. {¶ 8} Two months later, Walton Manor filed an affidavit signed by Kullman in support of its renewed motion to stay and to compel arbitration. Following the hearing on the motion, Kolosai moved to strike Kullman's affidavit. The trial court noted that its decision granting Walton Manor's motion to stay and to compel arbitration had been "reversed by the court of appeals." It denied Kolosai's motion to strike, granted the renewed motion to stay, and referred the appropriate counts in the complaint to arbitration, finding that "Nicholas Giancola signed the admission agreement and acknowledgment regarding arbitration, and is, therefore, bound by its terms." Kolosai appealed.

D. Second Appeal: Kolosai II

{¶ 9} In lieu of addressing the assignments of error presented, the appellate court sua sponte raised the issue of the law-of-the-case doctrine. In a two-to-one decision, the appellate court held that the trial court had violated the law-of-the-case doctrine when it reconsidered the issue of who had signed the arbitration agreement.

{¶ 10} Walton Manor filed a motion for reconsideration of that decision or, in the alternative, an application for a rehearing en banc. Upon reconsideration, the appellate court held that the law-of-the-case was established in Kolosai I : the arbitration agreement could not be enforced under a doctrine of apparent authority. 2016-Ohio-5831, 2016 WL 4978362, ¶ 36 (" Kolosai II "). The court of appeals also held that the handwriting expert's report should not have been considered by the trial court because "[t]he record does not support the assertion that the evidence was newly discovered and could not have been discovered with due diligence." Id. at ¶ 61. In addition, the appellate court held that the trial court had exceeded the mandate of the court of appeals in Kolosai I. Id. at ¶ 62. Walton Manor appealed.

E. Proposition of Law

{¶ 11} Walton Manor presents one proposition of law in its memorandum in support of jurisdiction. That proposition of law states:

A trial court must have broad discretion to hear evidence and control its docket when addressing a case remanded for further proceedings and the law of the case doctrine shall be limited to legal issues and account for an expanded record containing new evidence to address factual issues on remand.

{¶ 12} In its merit brief to the court, Walton Manor presents two propositions of law. Because we accepted only the proposition of law presented in Walton Manor's jurisdictional memorandum, we decline to expand our review.

II. Law and Analysis

{¶ 13} The narrow issue before this court-whether the appellate court properly applied the law-of-the-case doctrine-presents a question of law; therefore, we apply a de novo review standard. Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 17.

{¶ 14} The law-of-the-case doctrine has long existed in Ohio jurisprudence. " '[T]he doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.' " (Brackets sic.) Hopkins v. Dyer , 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 15, quoting Nolan , 11 Ohio St.3d at 3, 462 N.E.2d 410. "The doctrine is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution." Id.

{¶ 15} Although the law-of-the-case doctrine generally is "a rule of practice rather than a binding rule of substantive law," Nolan at 3, 462 N.E.2d 410, we have also explained that "the Ohio Constitution 'does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appeals.' " State ex rel. Cordray v. Marshall , 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 32, quoting State ex rel. Potain v. Mathews , 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979). The doctrine therefore "functions to compel trial courts to follow the mandates of reviewing courts," Nolan at 3, 462 N.E.2d 410, and "[a]bsent extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case," id. at the syllabus.

{¶ 16} Accordingly, a trial court is without authority to extend or vary the mandate issued by a superior court, id. at 4, 462 N.E.2d 410, and "where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law," id. at 3, 462 N.E.2d 410. However, as the United States Supreme Court has explained, "[t]he doctrine of law of the case comes into play only with respect to issues previously determined," Quern v. Jordan , 440 U.S. 332, 347, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), fn. 18, and " '[w]hile a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues,' " id. , quoting Sprague v. Ticonic Natl. Bank , 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939).

{¶ 17} Our decision in State ex rel. Baker v. State Personnel Bd. of Rev. , 85 Ohio St.3d 640, 710 N.E.2d 706 (1999), is instructive here. In that case, the personnel board of review found that two former public employees were unclassified because they were fiduciaries to a county auditor under R.C. 124.11(A)(9) and were deputy auditors under R.C. 124.11(A)(4). Id. at 640, 710 N.E.2d 706. The board did not address the auditor's alternative argument that the former employees were unclassified because they had an administrative relationship to the auditor under R.C. 124.11(A)(9). Id. at 640-641, 710 N.E.2d 706. The common pleas court upheld the board's order, but the court of appeals reversed, concluding that neither the fiduciary exemption nor the deputy-county-auditor exemption applied, and it remanded the cause to the common pleas court for further proceedings. Id. In turn, the common pleas court remanded the matter to the board to consider whether the former employees were unclassified because they had an administrative relationship to the auditor. Relying on the law-of-the-case doctrine, the former employees sought a writ of prohibition from the court of appeals to prevent the board from conducting those proceedings. Id. The court of appeals denied the writ, and we affirmed, explaining that the board had not acted contrary to the mandate of any superior tribunal, because the court of appeals had not "conclusively determined" whether the administrative exemption was applicable. Id. at 643, 710 N.E.2d 706. For this reason, the law-of-the-case doctrine did not preclude the board from resolving the dispute by considering the auditor's alternative legal theory for the first time on remand. Id. at 643-644, 710 N.E.2d 706.

{¶ 18} In this case, the appellate court in Kolosai I 2014-Ohio-4474, 2014 WL 5089062, did not conclusively determine whether Giancola's mother had signed the arbitration agreement, because that opinion addressed the question whether Giancola's mother had apparent authority to sign the arbitration agreement on her son's behalf. Kolosai I at ¶ 10.

{¶ 19} However, Walton Manor claimed that Giancola, not his mother, had signed the arbitration agreement and sought to supplement the record with new evidence supporting that argument. Id. at ¶ 3. Recognizing that "Walton Manor [had] repudiated the rationale for the court's decision to refer the matter to arbitration," id. at ¶ 6, the Eighth District concluded that the trial court erred in enforcing the arbitration agreement under the theory that Giancola's mother signed the agreement with apparent authority because the "appellee [Walton Manor] concedes [that that theory] is factually wrong," id. at ¶ 9. The appellate court deemed Walton Manor "to have withdrawn any argument that the court did not err by finding that the mother had apparent authority to bind Giancola to arbitrate any disputes," id. at ¶ 10, and it "reversed and remanded" the matter "to the trial court for further proceedings consistent with [its] opinion," id. at ¶ 11.

{¶ 20} Although the appellate court in Kolosai I declined to review Walton Manor's new evidence that Giancola had signed the arbitration agreement because it would have required the court to add matter to the record, it did not decide that Giancola had signed the agreement or direct the trial court not to consider additional evidence that would refute the administrator's claim that the mother had signed the agreement. And contrary to the appellate court's assertion in Kolosai II , 2016-Ohio-5831, 2016 WL 4978362, at ¶ 36, the court's opinion in Kolosai I did not order the trial court to place the matter on the regular docket to proceed on the merits.

{¶ 21} Rather, " '[u]pon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred.' " State ex rel. Douglas v. Burlew , 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 11, quoting State ex rel. Stevenson v. Murray , 69 Ohio St.2d 112, 113, 431 N.E.2d 324 (1982). In this case, error occurred when the trial court granted the motion to stay arbitration on the basis of Giancola's mother's apparent authority to bind her son. By ordering a remand for "further proceedings," the decision in Kolosai I returned the parties to the same position they were in prior to the error, and nothing precluded Walton Manor from reasserting its argument that Giancola had signed the arbitration agreement or prevented the trial court from permitting the introduction of new evidence to support that assertion.

III. Conclusion

{¶ 22} Only those legal questions resolved by a reviewing court are the law of that case. Nolan , 11 Ohio St.3d at 3, 462 N.E.2d 410. Here, because the decision in Kolosai I did not prevent Walton Manor from presenting new evidence as to whether Giancola signed the arbitration agreement, the law-of-the-case doctrine does not prevent the trial court on remand from considering that new evidence. Accordingly, we reverse the Eighth District Court of Appeals' judgment, and we remand the cause for review of the assignments of error presented by Kolosai that were not addressed by the court of appeals.

Judgment reversed and cause remanded.

O'Donnell, French, Hall, and DeWine, JJ., concur.

O'Connor, C.J., dissents, with an opinion joined by Fischer, J.

Michael T. Hall, J., of the Second District Court of Appeals, sitting for O'Neill, J.

{¶ 23} I dissent. I would dismiss this case as having been improvidently accepted. I would further order that the opinion of the court of appeals may not be cited as authority except by the parties inter se.

Fischer, J., concurs in the foregoing opinion.


author: Fischer, J.

text:
    The STATE of Ohio, Appellee, v. GORDON, Appellant.
    No. 2017-1122
    Supreme Court of Ohio.
    Submitted February 27, 2018 Decided May 23, 2018.
    Denise E. Ferguson, for appellant.
   Fischer, J.

{¶ 1} This case was accepted as a certified conflict between judgments of the Ninth District and Fifth District Courts of Appeals. The Ninth District certified the issue in conflict as follows:

"Whether the post-release control notification of R.C. 2929.19(B)(2)(e) must include notification of the penalty provisions in R.C. 2929.141(A)(1)-(2), specifically, whether a trial court must inform an offender at the time of sentencing that the commission of a felony during a period of post-release control permits a trial court to impose a new prison term for the violation to be served consecutively with any prison term for the new felony."

150 Ohio St.3d 1441, 2017-Ohio-7843, 82 N.E.3d 1175, quoting the court of appeals' journal entry.

{¶ 2} Applying the plain language of R.C. 2929.19(B)(2)(e), we hold that the statute does not require that a trial court notify an offender at his initial sentencing hearing of the penalty provisions contained in R.C. 2929.141(A)(1) and (2) (provisions that apply only when an offender is convicted of committing a new felony while serving a period of postrelease control).

I. Facts and Procedural History

{¶ 3} In March 2015, appellant, Bruce Gordon, was indicted on two counts of rape in violation of R.C. 2907.02(A)(1)(b) (victims less than 13 years of age), with a factual allegation that Gordon purposely compelled the victims to submit by force or threat of force. Gordon was also charged with three counts of gross sexual imposition in violation of R.C. 2907.05(A)(4) (victims less than 13 years of age). A jury found him guilty on all counts.

{¶ 4} At sentencing, the trial court imposed an aggregate sentence of 55 years to life in prison.

{¶ 5} The trial court imposed the mandatory term of postrelease control at the sentencing hearing and also provided Gordon with notification of his postrelease-control term in the sentencing entry. The entry also advised Gordon that if he were convicted of a "new felony offense while on post-release control, the sentencing court [could] impose a prison term for the new felony offense as well as an additional consecutive prison term for the post-release control violation of twelve months or whatever time remains on [his] post-release control period, whichever is greater."

{¶ 6} Gordon timely appealed his conviction and sentence to the Ninth District Court of Appeals. On appeal, he raised seven assignments of error related to his trial and sentence. In his fourth assignment of error, Gordon argued that "[t]he trial court committed reversible and plain error when it sentenced [him] without properly giving him all the required notifications as required by R.C. 2929.19(B)(4) and concerning post-release control." The Ninth District overruled six of Gordon's seven assignments of error, including his above-quoted fourth assignment of error. The Ninth District did remand the case to the trial court after determining that the trial court had made insufficient findings at the sentencing hearing related to the imposition of consecutive sentences. The Ninth District also granted Gordon's motion to certify a conflict with the Fifth District's judgment in State v. Johnson , 5th Dist. Muskingum No. CT2016-0035, 2016-Ohio-7931, 2016 WL 6963179. We recognized the conflict. 150 Ohio St.3d 1441, 2017-Ohio-7843, 82 N.E.3d 1175.

II. Analysis

{¶ 7} R.C. 2929.141(A)(1) and (2) do not require a trial court to notify an offender of the penalty provisions contained therein, and Gordon does not argue that R.C. 2929.141(A)(1) and (2) require such notifications. Instead, Gordon argues-and the court in the conflict case, Johnson , held-that R.C. 2929.19(B)(2)(e) imposes that notification duty on the trial court. Thus, the issue before us is whether R.C. 2929.19(B)(2)(e) requires that a trial court notify an offender at his initial sentencing hearing that under R.C. 2929.141(A)(1) and (2), a later felony committed during that offender's postrelease-control term may result in termination of postrelease control and imposition of a separate prison term to be served consecutively to the prison term imposed for the later felony.

{¶ 8} The primary goal of statutory construction is to give effect to the legislature's intent. Summerville v. Forest Park , 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 19 ; Cline v. Ohio Bur. of Motor Vehicles , 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991). To determine the intent of the legislature, we first look to the plain language of the statute. State ex rel. Burrows v. Indus. Comm. , 78 Ohio St.3d 78, 81, 676 N.E.2d 519 (1997). When a statute is plain and unambiguous, we apply the statute as written. Portage Cty. Bd. of Commrs. v. Akron , 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996).

{¶ 9} "It is settled that 'a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing' and that 'any sentence imposed without such notification is contrary to law.' " State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. However, when the notifications provided by a trial court could be more thorough but nevertheless satisfy the statutory requirements, the trial court does not err in deciding not to provide more thorough notification. See id. at ¶ 19, 25 (holding that a sentencing entry that meets the statutory requirements is legally sufficient even if the trial court could have been more thorough in that sentencing entry).

{¶ 10} R.C. 2929.19(B)(2)(e) provides that a trial court shall

[n]otify the offender that, if a period of supervision is imposed following the offender's release from prison, as described in division (B)(2)(c) or (d) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender. If a court imposes a sentence including a prison term on or after July 11, 2006, the failure of a court to notify the offender pursuant to division (B)(2)(e) of this section that the parole board may impose a prison term as described in division (B)(2)(e) of this section for a violation of that supervision or a condition of postrelease control imposed under division (B) of section 2967.131 of the Revised Code or to include in the judgment of conviction entered on the journal a statement to that effect does not negate, limit, or otherwise affect the authority of the parole board to so impose a prison term for a violation of that nature if, pursuant to division (D)(1) of section 2967.28 of the Revised Code, the parole board notifies the offender prior to the offender's release of the board's authority to so impose a prison term. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term and failed to notify the offender pursuant to division (B)(2)(e) of this section regarding the possibility of the parole board imposing a prison term for a violation of supervision or a condition of post-release control.

{¶ 11} R.C. 2929.19(B)(2)(e) sets forth one of the notification duties that trial courts have at sentencing hearings. R.C. 2929.19(B)(2)(e) unambiguously requires that the court notify the offender that if the offender violates postrelease control, the parole board may impose a prison term of up to one-half of the stated prison term originally imposed upon the offender. R.C. 2929.19(B)(2)(e) does not impose any other notification requirements on trial courts.

{¶ 12} Applying the plain language of the unambiguous statute, R.C. 2929.19(B)(2)(e) does not require that the trial court inform the offender of the penalty provisions contained in R.C. 2929.141(A)(1) and (2) (provisions that apply only when an offender is convicted of committing a new felony while serving a period of postrelease control).

III. Conclusion

{¶ 13} We hold that the plain language of R.C. 2929.19(B)(2)(e) does not require that at the initial sentencing hearing, a trial court provide notification to the offender of the penalty provisions contained in R.C. 2929.141(A)(1) and (2).

{¶ 14} Accordingly, we affirm the judgment of the Ninth District Court of Appeals.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, DeWine, and DeGenaro, JJ., concur.