Relying More on the Ohio Constitution

While our politics differ,  I share a legal passion with Judge Jeff Sutton of the U.S. Court of Appeals for the Sixth Circuit—the underappreciated subject of state constitutional law.  This was Judge Sutton’s topic at a lecture he gave at the Supreme Court of Ohio April 4 as part of the Forum on the Law lecture series, established in 2009 by the late Chief Justice Tom Moyer. 

It might seem strange that a federal appeals court judge champions state constitutional law, but Judge Sutton was a practicing lawyer in Ohio for many years before he took the bench, and was also Ohio’s State Solicitor (now known as the Ohio Solicitor General) from 1995-1998. He also teaches this subject at the Ohio State Law School.

Many people don’t even know states have their own constitutions.  And many more probably don’t realize that in the area of civil rights and individual liberties, the U.S. Constitution sets only a floor of requirements—states are free to find greater protections under their own constitutions if they so choose.  Read my post on the New Judicial Federalism here.

Judge Sutton highlighted three important decisions in Ohio Constitutional law.  In the DeRolph cases (a series of decisions), the Supreme Court of Ohio relied on the “thorough and efficient clause (Article VI Section 2) of the Ohio Constitution to find the Ohio public school financing system unconstitutional. In Norwood v. Horney, written by Chief Justice Maureeen O’Connor, the Ohio high Court relied on the public use clause (Article I Section 19) of the state constitution to find greater protection for property owners than the U.S. Supreme Court found under the federal takings clause in Kelo v. New London.   And in Humphrey v. Lane, written by Justice Paul Pfeifer, the Ohio high court used part of the state freedom of religion clause, Article I section 7, to find greater protection for the free exercise of religion than the U.S. Supreme Court had under the First Amendment in Employment  Division v. Smith.

Here are two more examples. The Ohio high court is more solicitous of opinion (from the media, mostly) in defamation cases ( (Article I section 11; Vail v. Plain Dealer Publishing Co. 72 Ohio St.3d 279 (1995) and stricter than federal law about prohibiting warrantless arrests for minor misdemeanors (Article I, Section 14, State v. Brown, 99 Ohio St.3d 323 (2003).

The original champion of developing state constitutional law in Ohio was the late Justice Craig Wright.  He wrote some stirring dissents about more and better use of the Ohio Constitution. (see for example, Eastwood Mall v. Slanco, 68 Ohio St.3d 221, (1994)  and the remand in State v. Wyant, 68 Ohio St.3d 162, (1994).

Today, the mantle of state constitutional law has been taken up most vigorously by Justice Pfeifer.  In oral argument he frequently asks “what about the Ohio Constitution”?In the most recent decision he authored (on April 3, 2012), In Re C.P., slip opinion No.2012-Ohio-1446, striking down a statute imposing mandatory lifetime registration and notification requirements on juvenile sex offenders tried in the juvenile system, the holding was based on both the Eighth Amendment Cruel and Unusual Punishment Provision of the U.S. Constitution, and  Article I Section 9, its Ohio Constitutional counterpart, and on the due process clauses of both constitutions.

I agree with Judge Sutton that lawyers should do more with this subject, and I suspect they will.

Here’s a link to Judge Sutton’s talk:




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