[ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Jones v. Ohio State House of Representatives , Slip Opinion No. 2022

- Ohio

- 1909 .]

NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2022

- O HIO - 1909 T HE S TATE EX REL . J ONES ET A L . v . O HIO S TATE H OUSE OF R EPRESENTATIVES
ET AL . [ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Jones v. Ohio State House of Representatives , Slip

Opinion No. 2022

- Ohio

- 1909 .] Mandamus

— Writ sought to compel Ohio House of Representatives and its

me mbers to uphold Article I, Section 21 of the Ohio Constitution

— Relief sought in complaint is beyond this court’s jurisdiction to grant

— Motion to dismiss granted

— Cause dismissed for lack of jurisdiction

. (No. 2021

- 1312

— Submitted January 25, 2022

— Decided Jun e 8 , 20 2 2 .) I N M ANDAMUS

.

________________ Per Curiam
. {¶ 1} In this original action, relators, Joseph A. Jones, Erik W. Jones, Nancy Furlong, Valerie E. Pawlowski, and Bradley Lynnet , seek a writ of mandamus against the Ohio House of R epresentatives and 98 of its members individuallyS UPREME C OURT OF O HIO

2 ( collectively, “the House respondents”)

. 1 The House respondents have filed a motion to dismiss. For the reasons set forth below, we grant the motion an d dismiss the complaint for lack of jurisdiction. B ackground {¶ 2} Article I, Section 21 (A) of the Ohio Constitution provides that “ [n] o federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to p articipate in a health care system.” Relators allege that beginning in March 2020 and continuing to the present, Ohioans have been subjected to ongoing violations of this constitutional provision. Specifically, citizens have been required to “ wear alleged medical devices,” provide DNA samples, have their temperatures taken, receive vaccinations, undergo contact tracing, and participate in the collection of health

- care information. {¶ 3} To remedy these alleged violations, relators ask this court to i ssue a writ of mandamus to compel the House respondents to u phold the Ohio Constitution

— specifically Art icle I, Sec tion 21. More specifically, relators ask for a writ compelling the House respondents to d efend Art icle I, Sec tion 21 “ against any passage of legislation which may possibly conflate, obfuscate or otherwise subvert the clarity of rights conveyed by” Art icle I, Sec tion 21 . And finally, they ask for a writ compelling the House respondents to order the Ohio Attorney Ge neral
to halt the operation o f any public or private entity that is participating in the alleged constitutional violations within the state of Ohio. Relators allege that t he House respondents’ duty to undertake these actions flows from their oaths of office to support and defend the Ohio Constitution. {¶ 4} We have considered t he House respondents ’ motion to dismiss and the arguments presented by relators in their memorandum in opposition, and we grant the motion.

1

. The complaint did not name Representative Latyna M. Humphr ey as a respondent

.January Term, 2022

3 A nalysis {¶ 5} A writ of mandamus is an extraordinary remedy , “exercised by this court with caution and issued only when the right is clear.” State ex rel. Brown v. Ashtabula Cty

. Bd. of Elections , 142 Ohio St.3d 370, 2014

- Ohio

- 4022, 31 N.E.3d 596, ¶ 11. To be entitled to a writ of mandamus, a party must establis h by clear and convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. See State ex rel. Love v. O’D onnell , 150 Ohio St.3d 378, 2017

- Ohio

- 5659, 81 N.E.3d 1250, ¶ 3. {¶ 6} Relators’ request for a writ to compel the House respondents to “defend” Art icle I, Sec tion 21 can be read in two ways: as a request to compel the House respondents to enact legislation prohibiting the practices to which relators object or as a request to prohibit them from enacting legislation that would conflict with Art icle I, Sec tion 21. Under either theory, we have no jurisdiction to grant the
reques ted relief. {¶ 7} “While Ohio, unlike other jurisdictions, does not have a constitutional provision specifying the concept of separation of powers, this doctrine is implicitly embedded in the entire framework of those sections of the Ohio Constitution that defin e the substance and scope of powers granted to the three branches of state government.” S. Euclid v. Jemison , 28 Ohio St.3d 157, 158

- 159, 503 N.E.2d 136 (1986). The legislative power of this state is vested in the General Assembly. Ohio Const itution , Ar t icle II , Section 1; Stetter v. R.J. Corman Derailment Servs., L.L.C. , 125 Ohio St.3d 280, 2010

- Ohio

- 1029, 927 N.E.2d 1092, ¶ 36. As such, the General Assembly has the power to enact, amend, and repeal statutes , Ohio Const itution , Art icle II , and “[t]his lawmaking prerogative cannot be delegated to or encroached upon by the other branches of government , ” Toledo v. State , 154 Ohio St.3d 41, 2018

- Ohio

- 2358, 110 N.E.3d 1257 , ¶ 26.S UPREME C OURT OF O HIO

4 {¶ 8} “ A writ of mandamus will not issue to a legislative body or its officers to require the performance of duties that are purely legislative in character and over which such legislative bodies have exclusive control. ” State ex rel. Grendell v. Davidson , 86 Ohio St.3d 629, 633, 716 N.E.2d 704 (1999). In other words, we h ave no jurisdiction to order the General Assembly to enact a specific piece of legislation

. In Grendell , for example, the issue was whether this court could compel the inclusion of a n airport

- funding appropriation in the General Assembly’s conference repo rt. The relator s argued that the appropriation had been approved by both chambers of the legislature and that the conference committee had failed to follow the legislative rules when it deleted the provision. We denied the writ, holding that the separati on
- of

- powers doctrine prohibited a court from directing the legislature to perform duties that were “purely legislative in character.” Id. Likewise, in Wapakoneta v. Helpling , 135 Ohio St. 98, 19 N.E.2d 772 (1939) , the relator sought a writ of mandamus to compel a municipal legislature to build a light and power plant. We denied the writ because the construction project would involve the performance of discretionary duties that were “purely legislative in character,” involving “a resp onsibility and burden which is outside the scope of the judicial function.” Id. at 108. {¶ 9} Under the same theory, we also have no jurisdiction to preemptively order the General Assembly not to enact legislation “because the separation

- of

powers doctrine precludes courts from enjoining the General Assembly from exercising its legislative power to enact law s.” Toledo at ¶ 2. {¶ 10} Judicial power is conferred upon the courts of Ohio by Article IV, Section 1 of the Ohio Constitution. “ ‘It is emphatically the province and duty of the judicial department to say what the law is.’ ” Adams v. DeWine , __ Ohio St.3d __, 2022

- Ohio

- 89, __ N.E.3d __, quoting Marbury v. Madison , 5 U.S. 137, 177, 2 L.Ed. 60 (1803). But the courts cannot tell the legislature what the law should be or dictate how the General Assembly should carry out its constitutionalJanuary Term, 2022

5 respo nsibilities. “It is a fundamental principle of the separation of powers that ‘the legislative branch [of government] is the “ ultimate arbiter of public policy. ” ’ ” Gabbard v. Madison Local Sch ool Dist. Bd. of Ed n
. , 165 Ohio St.3d 390 , 2021

- Ohio

- 2067, 17 9 N.E.3d 1169 , ¶ 39, quoting Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007

- Ohio

- 6948, 880 N.E.2d 420, ¶ 21 , quoting State ex rel. Cincinnati Enquirer Div. of Gannett Satellite Information Network, Inc. v. Dupuis , 98 Ohio St.3d 126, 2002

- Ohio

- 7041, 781 N.E.2d 163, ¶ 21. {¶ 11} For similar reasons, we may not order the General Assembly to compel the attorney general to perform his duties in a certain fashion. The attorney general is an independently elected executive

- branch official . Ohio C onst itution, Art icle III , Sec tion 1; R.C. 109.01; State ex rel. Doerfler v. Price , 101 Ohio St. 50, 128 N.E. 173 (1920), paragraph 3 of the syllabus. We express no opinion as to the scope of the General Assembly’s authority to control how the attorney gen eral performs his duties, except to say that if the General Assembly were to impose restraints on an executive

- branch official, it would have to do so through the passage of legislation. And the separation

- of

- powers doctrine precludes us from telling the General Assembly what legislation it should enact. {¶ 12} The relief sought in this complaint is beyond our jurisdiction to grant. We therefore dismiss the complaint for lack of jurisdiction

. M otion granted and cause dismissed

. O’C ONNOR , C.J., and F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ. ,
concur. K ENNEDY , J., concurs in judgment only, with an opinion. B RUNNER , J., concurs in judgment only.

_________________S UPREME C OURT OF O HIO

6 K ENNEDY , J., concurring in judgment only. {¶ 13} Because relators, Joseph A. Jones, Erik W. Jon es, Nancy Furlong, Valerie E. Pawlowski, and Bradley Lynnet, are unable to prove any set of facts that would entitle them to the relief requested in their complaint, I agree with the majority that their mandamus action seeking to compel respondents, the Oh io House of Representatives and 98 of its members, to “uphold” and “defend” Article I, Section 21 of the Ohio Constitution must be dismissed. Consequently, although this case raises significant constitutional issues regarding the limits of state
governmen t that demand resolution, I concur in the judgment of the court, because I must. I write separately, however, because the majority confuses the exercise of subject

- matter jurisdiction with the existence of it. {¶ 14} Relators allege that the state government’s response to the COVID

19 pandemic (imposing mask mandates, screening for infection, conducting contact tracing, and providing vaccinations, for example) violated Article I, Section 21(A) of the Ohio Constitution, which provides that “[n]o federal, state, o r local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.” They seek a writ of mandamus directing respondents to defend this constitutional provision against future

encr oachments on Ohioans’ liberty. Respondents have moved to dismiss the complaint. {¶ 15} In deciding a motion to dismiss, we assume the truth of all factual allegations in the complaint and draw all reasonable inferences from them in favor of the relators. State ex rel. Williams Ford Sales, Inc. v. Connor , 72 Ohio St.3d 111, 113, 647 N.E.2d 804 (1995). We may dismiss for the failure to state a claim upon which relief can be granted only if it appears beyond doubt that relators can prove no set of facts entitling them to relief. Id. {¶ 16} “To be entitled to a writ of mandamus, a petitioner must establish a clear legal right to the requested relief, a clear legal duty on the part of a respondentJanuary Term, 2022

7 to grant the relief, and the lack of an adequate remedy in the ordinary co urse of the law.” State ex rel. Pennington v. Bivens , 166 Ohio St.3d 241, 2021

- Ohio

- 3134, 185 N.E.3d 41, ¶ 10. {¶ 17} Respondents do not have a clear legal duty to grant the relief that relators request. As we recently explained in Toledo v. State , “[i]n frami ng the Ohio Constitution, the people of this state conferred on the General Assembly the legislative power. This lawmaking prerogative cannot be delegated to or encroached upon by the other branches of government.” 154 Ohio St.3d 41, 2018

- Ohio

- 2358, 110 N.E.3d 1257, ¶ 26. “The separation

- of

- powers doctrine therefore precludes the judiciary from asserting control over ‘the performance of duties that are purely legislative in character and over which such legislative bodies have exclusive control.’ ” Id. at ¶ 27, quoting State ex rel. Grendell v. Davidson , 86 Ohio St.3d 629, 633, 716 N.E.2d 704 (1999). Rather, “[c]ourts may intervene only after a legislative enactment has been passed and challenged in an action properly before it.” Id. at ¶ 29. {¶ 18} Although granting the relief that relators request would cross the boundary between the judicial and legislative branches, that does not mean this court lacks subject

- matter jurisdiction over this action. {¶ 19} We have recognized that the word “jurisdiction,” set apart by itself, “is a vague term, ‘ “a word of many, too many, meanings.” ’ ” Cheap Escape Co., Inc. v. Haddox

, L.L.C. , 120 Ohio St.3d 493, 2008

- Ohio

- 6323, 900 N.E.2d 601, ¶ 5, quoting Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), quoting United States v. Vanness , 85 F.3d 661, 663 (D.C.Cir.1996), fn. 2. It can include “[s]everal distinct concepts, including territorial jurisdiction, monetary jurisdiction, personal jurisdiction, and subject

matter juri sdiction,” id ., as well as “jurisdiction over a particular case,” Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014

- Ohio

- 4275, 21 N.E.3d 1040, ¶ 18. “ ‘The often unspecified use of this polysemic word can lead to confusion and hasS UPREME C OURT OF O HIO

8 repeatedly required c larification as to which type of “jurisdiction” is applicable in various legal analyses.’ ” Ostanek v. Ostanek , 166 Ohio St.3d 1, 2021

- Ohio

- 2319, 181 N.E.3d 1162, ¶ 20, quoting Kuchta at ¶ 18. {¶ 20} “Subject

- matter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a particular class or type of case,” Corder v. Ohio Edison Co ., 162 Ohio St.3d 639, 2020

- Ohio

- 5220, 166 N.E.3d 1180, ¶ 14, and “ ‘[a] court’s subject

- matter jurisdiction is determined without regard to the rights of the individual parties involved in a particular case,’ ” id ., quoting Kuchta at ¶ 19. “Instead, ‘the focus is on whether the forum itself is competent to hear the controversy.’ ” Id . at ¶ 14, quoting State v. Harper , 160 Ohio St.3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248, ¶ 23. {¶ 21} On the other hand, “[a] court’s jurisdiction over a particular case refers to the court’s authority to proceed or rule on a case that is within the court’s subject

- matter jurisdiction.” Kuchta at ¶ 19. This reference to a court’s exercise of its jurisdiction over a particu lar case “involves consideration of the rights of the parties,” id ., citing Pratts v. Hurley , 102 Ohio St.3d 81, 2004

- Ohio

- 1980, 806 N.E.2d 992, ¶ 12. That is, “ ‘ “[o]nce a tribunal has jurisdiction over both the subject matter of an action and the parti es to it, ‘* * * the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred * * *.’ ” ’ ” (Ellipses added in Pizza .) Harper at ¶ 26, quoting Pratts at ¶ 12, quo ting State ex rel. Pizza v. Rayford , 62 Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon’s Lessee v. Newton , 3 Ohio St. 494, 499 (1854). {¶ 22} The Ohio Constitution establishes the subject

- matter jurisdiction of this court and expressly provides that we have original jurisdiction over actions in quo warranto, habeas corpus, prohibition, procedendo, practice

- of

- law matters, and relevant here, mandamus. Article IV, Section 2(B)(1) of the Ohio Constitution. We therefore have original jurisdiction to re view the complaint filed in this case.January Term, 2022

9 {¶ 23} Nonetheless, the separation

- of

- powers doctrine is “the sacred maxim of free government,” Madison, The Federalist No. 47 at 308 (Clinton Rossiter Ed.1961), and “the checks and balances that principle ensures are now d eemed fundamental to our democratic form of government,” State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 2006

- Ohio

- 1825, 848 N.E.2d 472, ¶ 55. But until today, we have never held that the separation

- of

- powers doctrine should be considered when determining the subject

- matter jurisdiction of courts, and the two cases that the majority cites in support of its holding

— Grendell and Wapakoneta v. Helpling , 135 Ohio St. 98, 19 N.E.2d 772 (1939)

— say nothing to that effect . In fact, in Helpling , the court reached the merits of the relator’s claims, which would not have been appropriate if a jurisdictional bar had been applied. {¶ 24} In any case, it is not necessary to decide whether the separation

- of

powers doctrine, which is implicitly embedded within the framework of the Ohio Constitution, see State v. Bodyke , 126 Ohio St.3d 266, 2010

- Ohio

- 2424, 933 N.E.2d 753, ¶ 42, deprives this court of subject

- matter jurisdiction notwithstanding the express grant of original jurisdiction to review mandamus actions set forth in Arti cle IV, Section 2(B)(1)(b). That question has not been presented and argued by the parties, and we have held that a court of appeals “should not decide cases on the basis of a new, unbriefed issue without ‘giv[ing] the parties notice of its intention and an opportunity to brief the issue,’ ” (brackets sic) State v. Tate , 140 Ohio St.3d 442, 2014

- Ohio

- 3667, 19 N.E.3d 888, ¶ 21, quoting State v. 1981 Dodge Ram Van , 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). We should not be so quick to reach an unbriefe d issue ourselves. {¶ 25} For these reasons, I concur in the majority’s judgment but not its opinion. And although I recognize the weighty constitutional questions that relators have raised, principles of judicial restraint preclude this court from answering th em today.

_________________S UPREME C OURT OF O HIO

10 Joseph A. Jones, pro se. Erik W. Jones, pro se. Nancy Furlong, pro se. Valerie E. Pawlowski, pro se. Bradley Lynnet, pro se. Dave Yost, Attorney General, and Garrett M. Anderson and Bryan B. Lee , Assistant Attorney s General, for respondent s
.

_________________