COLUMBUS — A federal appeals court on Wednesday ordered Attorney General Dave Yost to stop blocking the path of a proposed constitutional amendment that would do away with qualified immunity for police officers and other government employees.
A 2-1 decision of a panel of the U.S. 6th Circuit Court of Appeals in Cincinnati told the Republican attorney general to forward the proposal to the GOP-majority Ohio Ballot Board for the next step of deciding whether the changes represent one or more constitutional amendments. That would be the last step before the committee could start gathering about 413,000 valid signatures of registered voters to qualify for the ballot.
July 3 marks the deadline for such petitions to be filed to make the Nov. 5 constitutional amendment. If the backers miss that deadline they could still take aim at it next year.
The appeals court reversed a lower federal court ruling and granted the preliminary injunction requested by the plaintiffs.
Mr. Yost had repeatedly rejected proposed summary language that would have been shown to potential petition signers as not being a fair and accurate representation of what the proposed constitutional amendment would do.
The panel's majority found that Mr. Yost's actions constituted a "severe burden" on backers of the petition when it comes to communicating with voters and meeting a July 3 deadline.
The majority noted that the attorney general rejected proposed summary "on multiple occasions over a long period — it is not a situation of petitioners delaying submission or otherwise self-inflicting this ongoing harm." It added that the deadline is less than 50 days away and that Mr. Yost objected to the Ohio Supreme Court's expediting consideration of the case.
The court rejected the attorney general's argument that the case belongs to the state Supreme Court.
"Yost’s argument turns Ohio’s law on its head," Judge Karen Nelson Moore wrote for the majority. "Rather than provide limited discretion to the Attorney General, in this case Yost has issued multiple denials — six based on the fair-and-truthful determination — without any review by an administrative body or court. And, although Yost is correct that [state law] provides for original jurisdiction in the Supreme Court of Ohio, it does not require that court to review the case within a reasonable time, in light of the election deadlines."
Judge John K. Bush dissented, noting that the plaintiffs don't challenge Mr. Yost's claim that the summary language was improper but instead argue that he has violated their First Amendment rights. They also dismissed their original appeal before the state Supreme Court.
"Plaintiffs do not argue before us that Yost made an incorrect determination that their summary was untruthful and unfair," he wrote. "Rather, Plaintiffs’ claims before us are based on the alleged injury that they have not received timely Ohio Supreme Court review of Yost’s decision.
"That injury, however, no longer exists because, through their own actions, Plaintiffs’ state-court appeal is no longer pending," he wrote. "Thus, any cognizable injury that Plaintiffs may have had in the district court no longer exists on appeal."
The proposed amendment would allow those who feel their constitutional rights have been violated by police officers or other government workers to sue. Their government employers could be liable for unlimited compensatory and noneconomic damages.
Mr. Yost’s office said it is reviewing the decision.
First Published May 30, 2024, 12:24 a.m.
