Opinion
No. 83-1556
Decided October 20, 1983.
Elections — Challenge to ballot language and explanation of proposed constitutional amendment — Action must be brought no later than sixty-four days before election — Section 1, Article XVI, Constitution.
IN MANDAMUS.
On October 6, 1983, relator, Philip W. Cramer, brought this action in mandamus to compel respondent, Sherrod Brown, Secretary of State, to strike Issue 3 from the ballot for November 8, 1983.
Issue 3 was proposed by initiative petition and would adopt a new Section 3a of Article XII of the Ohio Constitution, as follows:
"Any changes in the tax laws of the state that were enacted after January 1, 1983, but before the effective date of this amendment, shall expire on June 30, 1984. The tax laws of the state that are existing on January 1, 1983 shall be deemed to be in effect as of July 1, 1984. However, any tax scheduled to expire between January 1, 1983 and June 30, 1984 shall expire pursuant to the law as it existed on January 1, 1983."
The passage of Issue 3 would affect approximately eighty-five sections of the Ohio Revised Code dealing with various tax measures undertaken in 1983.
As of the week of October 10, 1983, respondent has commenced publication of the issue as required by Section 1g, Article II of the Ohio Constitution.
Section 1g, Article II, provides in pertinent part:
"* * * The law, or proposed law, or proposed amendment to the constitution, together with the arguments and explanations, not exceeding a total of three hundred words for each, and also the arguments and explanations, not exceeding a total of three hundred words against each, shall be published once a week for three consecutive weeks preceding the election, in at least one newspaper of general circulation in each county of the state, where a newspaper is published. * * *"
Relator alleges that Issue 3 presents multiple unrelated subjects in one issue and that the publication of the issue does not contain an explanation. He also alleges that the amendment, if passed, would be unconstitutional.
Respondent has answered and asserted as affirmative defenses, inter alia, that this action was not filed within sixty-four days of the election as required by Section 1, Article XVI of the Ohio Constitution, and that the complaint fails to state a claim upon which relief can be granted.
Mr. Philip W. Cramer, pro se. Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. David E. Northrop and Mr. John T. Williams, for respondent.
The first two of relator's challenges relate to the ballot language and explanation. Section 1, Article XVI of the Ohio Constitution, dealing with proposals initiated by the General Assembly, provides that "* * * [n]o such case challenging the ballot language, the explanation, or the actions or procedures of the general assembly in adopting and submitting a constitutional amendment shall be filed later than sixty-four days before the election." The sixty-four day limitation was held to apply to initiatives proposed by the electorate as well in State, ex rel. Cappelletti, v. Celebrezze (1980), 64 Ohio St.2d 1, 3 [8 O.O.3d 1].
In this case, relator filed his action on October 6, 1983. The election is scheduled for November 8, 1983. Clearly, relator's action herein is time barred for he did not file his action prior to sixty-four days before the election as required by Section 1, Article XVI of the Ohio Constitution.
Similarly, we reject relator's argument that the amendment proposed by Issue 3 would be unconstitutional if approved. It is well-settled that this court will not consider, in an action to strike an issue from the ballot, a claim that the proposed amendment would be unconstitutional if approved, such claim being premature. Pfeifer v. Graves (1913), 88 Ohio St. 473, paragraph five of the syllabus; Weinland v. Fulton (1918), 99 Ohio St. 10; Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286, paragraph two of the syllabus; State, ex rel. Marcolin, v. Smith (1922), 105 Ohio St. 570; State, ex rel. Kittel, v. Bigelow (1941), 138 Ohio St. 497 [21 O.O. 380], paragraph one of the syllabus.
Accordingly, the writ prayed for is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.