In the never ending saga between politicians, citizens for marijuana reform, and citizens for marijuana reform but against ResponsibleOhio marijuana reform; Buddie the Marijuana Mascot took one home for some of the marijuana reformers by getting a writ of mandamus to order the Ballot Board to rewrite parts of the Issue 3 Ballot Language.

The events leading up to this decision start with ResponsibleOhio obtaining the required amount of signatures to ask Ohio voters to vote on a proposed constitutional amendment to Article XV of the Ohio Constitution.  Specifically, the drafters of the proposed constitutional amendment are asking the voters to vote in favor of the legalization, regulation and taxation of medical and personal use of marijuana.

After ResponsibleOhio obtained the required signatures, the Ballot Board voted to adopt ballot language for Issue 3.  Soon after, Ohio Secretary of State John Husted issued the ballot title.  Issue 3’s full title is “Issue 3, Grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes; Proposed Constitutional Amendment; Proposed by Initiative Petition; To add Section 12 of Article XV of the Constitution of the State of Ohio.”

The Issue 3 ballot language was adopted on August 18, 2015 and on August 25, 2015, the full title of the ballot measure was adopted.

Obviously not too happy with the title and the ballot language, ResponsibleOhio commenced a writ of mandamus on August 27, 2015.  A writ of mandamus for all you non-legal types just means a superior court can order an inferior court or public office to do a specific act.  In this case, ResponsibleOhio wants the court to order the Ballot Board to rewrite the ballot language and title.

The Ohio Supreme Court granted ResponsibleOhio’s writ of mandamus in part and denied in part. see State ex re. ResponsibleOhio v. Ohio Ballot Board, 2015-Ohio-3758.  The Court granted writ to four specific paragraphs on the ballot language, but denied the writ as it related to the full title for Issue 3.

First Problem: Prohibit vs Permit

The proposed constitutional amendment by the ResponsibleOhio  prohibits marijuana establishments within 1,000 feet of a house of worship, public library, public or chartered elementary or secondary school, state-licensed day-care center, or public playground, subject to a grandfather clause.

The ballot language, however, replaces prohibit with permit in the ballot language.  Specifically, “The proposed amendment would: Permits marijuana growing, cultivation and extraction facilities, product manufacturing facilities, retail marijuana stores and not-for-profit medical marijuana dispensaries to be within 1,000 feet of a house of worship….”

I got a laugh out of this one.  For one, I doubt that those evil pot smokers made plans to be as close as possible to churches and schools as the ballot language would suggest.  I am sure that Cheech and Chong planned on opening their marijuana shop exactly 1,001 feet away from a church or school.

Second Problem:  Missing Critical Facts Concerning Retail Establishments

The ballot itself does contain much language when it comes to the retail sale of marijuana and marijuana infused products section of the proposed constitutional amendment.

The ballot states, “The proposed amendment would: Permit retail sale of recreational marijuana at approximately 1,100 locations statewide.”  And that pretty much sums up the retail aspect of the ballot language.  The Court found this to be misleading because the ballot language omitted two critical facts concerning retail establishments selling marijuana and marijuana-infused products.

The two critical omitted facts include: (1) that such retail establishments must have a state license and (2) that a license may be obtained only if the electors of the precinct where the store will be located approve the use of the location for such purpose at a local option election.  Meaning local residents can veto the operation of such a business in their neighborhood.

I think this problem ties in very well with the first problem of prohibit vs permit when it comes to location.  So, even if Cheech and Chong setup shop 1,001 feet away from a school, the local residents can veto that operation.  That tidbit of information would make a voter a better informed voter.

Third Problem:  Growing And Transporting Marijuana For All Persons 21 Years Of Age Or Older

Once again those pesky Ballot Board members are adding language not actually in the proposed constitutional amendment.  The ballot language states that each person, 21 years of age or older, to purchase, grow, possess, use, transport and share over one-half pound of marijuana or its equivalent in marijuana-infused products at a time, plus 4 homegrown, flowering marijuana plants.

Well….not really.  The ballot forgot to mention that under the proposed constitutional amendment that a user, 21 years of age or older, can grow up to eight ounces of marijuana plus four flowering plants only if they have obtained a valid state license.  Oh….and even those persons cannot transport the marijuana.

It is almost like the Ballot Board is going out of its way to mislead the public.

Fourth Problem:  Adding Another Marijuana Growth, Cultivation, And Extraction Facility In Four Years

Part of the proposed constitutional amendment is to have ten marijuana growth, cultivation, and extraction facilities in ten pre-designated counties.  The ballot language lists the ten pre-designated counties and goes on to say that one additional location may be allowed for in four years.

Well this is somewhat true, but the language omits that this extra facility in four years can open only if existing facilities cannot meet consumer demand.

Based on these four problems, the Court found that the Ballot Board’s ballot language inaccurately states pertinent information and omits essential information.  The Court went on to say that the cumulative effect of these defects in the ballot language is fatal because the ballot language fails to properly identify the substance of the amendment, a failure that misleads voters.

Regardless of whether you are for or against the marijuana amendment, the blatant misleading ballot language created by the Ballot Board is unconscionable.  Voters have the right to be properly informed without political agendas getting in the way of their vote.

Guest writer Keelie Gustin is a recent graduate of the University of Dayton, School of Law and is currently a Law Clerk for Holzfaster, Cecil, McKnight & Mues.  Keelie assists with all aspects of law at the firm, with a focus on criminal and traffic law.  Keelie is patiently awaiting for her bar results that are to be released at the end of October.  Thanks for the great article Keelie!  

Earlier this month, the Ohio Supreme Court held that an inoperable gun, or a gun that does not work and is not otherwise brandished as a bludgeon, is not considered a deadly weapon under Ohio law. R.C. 2923.11(A) states. “Deadly weapon” means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”

In March 2013, a Cincinnati officer stopped a teenager and discovered a loaded 9 mm handgun in his waistband during a pat-down. The officer charged the teenager with a fourth-degree felony for carrying a concealed deadly weapon, and the charge was later reduced to a first-degree misdemeanor, upon discovery that the 9 mm did not work. The First District Court of Appeals affirmed the juvenile court’s determination, despite the inoperable nature of the gun.

After the First District Court affirmed the charges, the Ohio Supreme Court granted the teenager’s discretionary appeal to consider the key question in the case: Can a person be convicted of carrying a concealed weapon “when the handgun being carried is inoperable and was not used as a bludgeon or otherwise used, possessed, or carried as a weapon”? In re J.T., Slip Opinion No. 2015-Ohio-3654.

Justice O’Neill, writing for the majority, found that the fact that the gun was inoperable to be essential, as the gun had lost the “sole function for which it had been designed.” Id.  In other words, to find that an individual that possesses an inoperable gun also possesses a deadly weapon leads to the incorrect assumption that the operability of the gun is irrelevant—by this reasoning, mere possession of the gun, no matter its condition, would constitute a violation of Ohio law. Id.  Justice O’Neill further stated that had the Ohio legislature intended for R.C. 2923.11(A) to include possession of an inoperable handgun, the legislature would have specified so in the statute, as they did in R.C. 2923.122(C), the Ohio statute prohibiting weapons within a school zone. R.C. 2923.122(C) states, “No person shall knowingly possess an object in a school safety zone if…the object is indistinguishable from a firearm, whether or not the object is capable of being fired.”

Including the specific phrase “whether or not the object is capable of being fired” in one statute but not the statute at issue in this case lends itself to the notion that the legislature did not include the language in R.C. 2923.11(A) for a reason.

The Ohio Supreme Court clarified the “black letter law” inherent in R.C. 2923.11(A): The gun must be in working condition to be considered a “deadly weapon.”