Could the bill work?
about how she expects her proposal to be received. “I’m sure you’ve seen what other people have said in the media prior to this. I hope to gain and garner more support as people begin to understand that it does not negate the people’s voice, that it simply places the implementation of Issue 1 through the legislature and that my colleagues would join me in this, but that of course is an individual decision which is up to them.”
Lawyers and constitutional scholars told this news organization that, even if the bill were to become law, it would have another uphill battle to fight in the courts.
“I would find it inconceivable that the courts would uphold legislation like this,” said Steven H. Steinglass, dean emeritus and professor emeritus at the Cleveland State University College of Law, in an interview with this news organization. He called H.B. 371 a “remarkable exercise in political theater.”
“I find it amazing that one small piece of legislation could, at the same time, violate so many well-established principles of Ohio constitutional law,” Steinglass said.
He said the proposal violates the longstanding principle of judicial review in Ohio; interferes with the original jurisdiction of the Ohio Supreme Court, which he said “could neither be expanded nor subtracted by the Ohio General Assembly,” along with the original jurisdiction of the state’s appellate courts; violates the doctrine of separation of powers in Ohio; and violates the state’s due process of law, required by the Ohio constitution, by denying a party the authority to raise claims under the Ohio Constitution.
“There is no historical, legal, doctrinal or other basis for giving the power to construe Ohio law, including the Ohio Constitution, to the general assembly,” Steinglass concluded.
But not all legal scholars agree.
Marc Clauson, professor of history and law at Cedarville University and a constitutional scholar, told this news organization that it’s been “difficult” for him to figure out if the bill could survive judicial review. He said if H.B. 371 became law, it would raise the question of whether the legislature has the remit to pointedly revoke longstanding jurisdiction.
For Clauson, certain phrases in the Ohio Constitution’s provisions on jurisdiction do open the window for legislative intervention, “but we’re not sure exactly how far they go in doing that.”
For example, when the Ohio Constitution gives Ohio’s courts of common pleas jurisdiction over a broad range of matters, it adds that the jurisdiction
“may be provided by law.” Gross and Dean are hoping the courts would interpret that clause to give the legislature the absolute power to block the courts’ ability to hear certain cases.
But Steinglass said that language, and similar phrases throughout the constitution pertaining to the courts, has historically been interpreted to give the legislature power to allocate cases amongst different divisions of the court, not do away with the jurisdiction entirely. He added that there’s “nothing within the language ... that gives them the right to adopt a subject matter exception to the jurisdiction of the courts.”
Jessie Hill, a law professor at Case Western Reserve University and an attorney that frequently works with the American Civil Liberties Union of Ohio to challenge the state’s abortion restrictions, told this news organization that the proposal would likely be ruled unconstitutional.
“One problem is just that the legislature doesn’t get to take all power away from the courts, for example, then they could say courts have no jurisdiction over anything, right? That can’t be what it means and no one has really thought it meant that,” Hill said.
She added that H.B. 371 itself conflicts with Issue 1, which has been a part of the state’s fundamental law since Dec. 7.
“The one thing that’s clear is that the Constitution is supreme over regular laws,” Hill said.
Judicial experts will be watching the debate over H.B. 371 closely.
“A legislature trying to prevent the judicial branch from interpreting a constitutional amendment. I’ve never heard or read of that before,” Clauson said. “It would be breaking new legal ground”