[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-5919.] 

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. 

SLIP OPINION NO. 2016-OHIO-5919 

THE STATE EX REL. SENSIBLE NORWOOD ET AL. v. HAMILTON COUNTY

BOARD OF ELECTIONS. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of 

Elections, Slip Opinion No. 2016-Ohio-5919.] 

Mandamus—Writ of mandamus sought to compel board of elections to place 

proposed city ordinance on the election ballot—Proposed ordinance 

attempts to enact provisions that are beyond the scope of a municipality’s 

authority to enact—Writ denied.

(No. 2016-1277—Submitted September 20, 2016—Decided September 22, 2016.) 

IN MANDAMUS.

_________________ 

Per Curiam. 

{¶ 1} This is an expedited election case in which relators seek a writ of 

mandamus to require respondent, the Hamilton County Board of Elections, to place 

a proposed “Sensible Marihuana Ordinance” on the ballot for the city of Norwood 

at the November 8, 2016 general election. We deny the requested writ because 
January Term, 2016 

2 

relators have failed to establish a clear legal right to requested relief and a clear 

legal duty on the part of the board to provide the relief. 

I. Factual and procedural history 

{¶ 2} Relator Sensible Norwood is a political-action committee 

established under R.C. Chapter 3517 to support an initiative proposing an ordinance 

to decriminalize marijuana and hashish in the city of Norwood. Relator Amy 

Wolfinbarger is the founder of Sensible Norwood and is one of the committee 

members designated under R.C. 731.34 to represent the petitioners who filed the 

initiative petition. 

{¶ 3} On July 20, 2016, petitioners filed initiative petitions with signatures 

to have a proposed ordinance placed on the November general-election ballot to 

change the Norwood city ordinances regarding the legality of and penalties for 

using and selling marijuana and hashish. Pursuant to R.C. 731.28, the petitions 

were filed with the city auditor, who transmitted them to the Hamilton County 

Board of Elections to determine the sufficiency of the signatures. After receiving 

the board’s certification that the petitions contained sufficient signatures, the 

auditor, on August 2, 2016, sent a letter to the board requesting that it place the 

proposed ordinance on the ballot for the November 8, 2016 election. 

{¶ 4} The board discussed placing the proposed ordinance on the ballot at 

two meetings—on August 16, 2016, and on August 22, 2016. At the August 22, 

2016 meeting, the board voted unanimously not to place the proposed ordinance on 

the ballot, reasoning that it attempts (1) to enact felony offenses, which the board 

members believed was beyond the authority of a city ordinance, and (2) to impose 

administrative restrictions on the enforcement of existing laws. 

{¶ 5} On August 29, 2016, relators initiated this action as an expedited 

election matter pursuant to S.Ct.Prac.R. 12.08 seeking a writ of mandamus to 

require the Hamilton County Board of Elections to place the proposed ordinance 

on the ballot. 
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3 

II. Legal analysis 

A. Review of petitions 

{¶ 6} We have previously determined that county boards of elections have 

the authority “to review, examine, and certify ‘the sufficiency and validity of 

petitions.’ ” State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, 

43 N.E.3d 419, ¶ 11, quoting R.C. 3501.11(K). That authority can be exercised in 

regard to municipal initiative petitions even after the board verifies the number of 

signatures. 

[I]f the auditor or clerk certifies the sufficiency and validity of the 

initiative petition to the board of elections, the board must submit 

the proposed ordinance or other measure at the next succeeding 

general election occurring after seventy-five1 days from the 

certification to the board of elections, but only if the board 

determines under R.C. 3501.11(K) and 3501.39 that the petition is 

sufficient and valid. 

(Emphasis added.) State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 477, 

764 N.E.2d 971 (2002). 

{¶ 7} While municipal officials, like the Norwood city auditor, “have 

limited discretionary authority concerning matters of form, but not matters of 

substance * * * a board of elections has greater discretion to inquire into the 

sufficiency of a proposed ballot measure than municipal officials do.” Walker at 

¶ 10-11. A board may reject a petition if it “violates the requirements of [R.C. 

 

1

 R.C. 731.28 previously required a measure to be placed on a ballot at the next succeeding general 

election occurring 75 days from the certification to the board of elections. In 2010, the number of 

days was changed to 90. 2010 Am.Sub.H.B. No. 48. 
January Term, 2016 

4 

Chapter 3501], Chapter 3513. of the Revised Code, or any other requirements 

established by law.” R.C. 3501.39(A)(3). 

B. Does the proposed ordinance satisfy the requirements for an initiated 

ordinance? 

{¶ 8} The Hamilton County Board of Elections was authorized to review 

the validity of the petition after the auditor asked the board to place the proposed 

ordinance on the ballot. We therefore must consider whether the board properly 

rejected the petition. 

1. Proposed ordinance attempts to enact felony offenses and associated 

penalties 

{¶ 9} “ ‘Mandamus will not lie to compel a board of elections to submit 

an ordinance proposed by initiative petition to the electorate if the ordinance does 

not involve a subject which a municipality is authorized by law to control by 

legislative action.’ ” State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 

437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 34, quoting State ex rel. Hazel v. 

Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 168, 685 N.E.2d 224 (1997); 

see Ohio Constitution, Article II, Section 1f. 

{¶ 10} R.C. 715.67 specifies that a “municipal corporation may make the 

violation of any of its ordinances a misdemeanor, and provide for the punishment 

thereof by fine or imprisonment, or both.” However, “[t]he power to define and 

classify and prescribe punishment for felonies committed within the state is lodged 

in the General Assembly.” State v. O’Mara, 105 Ohio St. 94, 136 N.E. 885 (1922), 

paragraph one of the syllabus, overruled in part on other grounds, Steele v. State, 

121 Ohio St. 332, 168 N.E. 846 (1929). 

{¶ 11} The proposed ordinance purports to enact felony offenses and 

impose penalties for possessing or using marijuana and hashish. For example, 

proposed section 513.15(b) establishes an offense for the possession of marijuana 

and then in subsection (3) states, “If the amount of the drug involved equals or 
SUPREME COURT OF OHIO

5 

exceeds two hundred grams, possession of marihuana is a fifth degree felony drug 

abuse offense. Persons convicted of violating this section shall not be fined and no 

incarceration, probation, nor any other punitive or rehabilitative measure shall be 

imposed.” (Emphasis added.) Similar language applies to the possession of 

hashish. 

{¶ 12} Although the proposed ordinance specifically prohibits any 

punishment for the offense, the language also states that the offense is a felony. 2 

While a city may define misdemeanor offenses and impose penalties by ordinance, 

a city does not have authority to define felony offenses. Because the authority to 

define and to propose penalties for felonies is limited to the General Assembly, 

relators are not entitled to have a proposed ordinance that purports to enact a felony 

offense placed on the ballot. 

2. Proposed ordinance attempts to place administrative restrictions on 

the enforcement of existing laws 

{¶ 13} “Administrative actions are not subject to initiative.” N. Main St. 

Coalition, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, at ¶ 34. “The 

test for determining whether the action of a legislative body is legislative or 

administrative is whether the action taken is one enacting a law, ordinance or 

regulation, or executing or administering a law, ordinance or regulation already in 

existence.” Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968), 

paragraph two of the syllabus. 

{¶ 14} In applying this test to the proposed ordinance, we conclude that 

significant portions of the proposed ordinance attempt to govern the execution of 

existing law rather than enact new law. The following provisions are distinctly 

administrative: 

 

2

 For the purpose of state law, “any offense specifically classified as a felony is a felony.” R.C. 

2901.02(D). An offense not otherwise classified is a felony “if imprisonment for more than one 

year may be imposed as a penalty.” R.C. 2901.02(E). 
January Term, 2016 

6 

{¶ 15} (1) Section 513.15(m) prohibits a Norwood police officer or the 

officer’s agent from reporting the possession, sale, use, or distribution of marijuana 

or hashish to any authority other than the city attorney. The city attorney is 

prohibited from referring a report of a violation to any other authority for 

prosecution or for any other reason. The language is not restricted to instances 

involving violations of the city’s ordinance. 

{¶ 16} (2) Section 513.15(o) prohibits any authority from seeking criminal 

or civil asset forfeiture based on violations of the proposed ordinance. However, 

existing state and federal laws authorize criminal and civil asset forfeiture for 

violations of controlled-substance laws. See, e.g., R.C. 2925.42. 

{¶ 17} (3) Section 513.15(s) prohibits the suspension of a driver’s or 

commercial driver’s license or permit for any length of time based on the drugabuse offenses in the proposed ordinance. Numerous sections of R.C. Chapter 

2925, the drug-offenses laws, include provisions permitting or requiring a court to 

suspend an offender’s driver’s license upon conviction. See, e.g., R.C. 2925.02(D), 

2925.05(D), and 2925.04(D). See also R.C. 4510.05 and 4510.07 (providing for 

the suspension of a driver’s or commercial driver’s license upon conviction of 

violating municipal ordinances substantially similar to Revised Code provisions). 

{¶ 18} Relators claim that these provisions are legislative rather than 

administrative because the proposed ordinance would repeal and amend Norwood’s 

current criminal law. Relators allege that the provisions are not administrative and 

that those portions that direct how the proposed law should be enforced do not make 

the provisions administrative. However, the language reaches far beyond the 

enforcement of the proposed ordinance and attempts to prohibit the enforcement of 

existing state and federal controlled-substance laws. These provisions are clearly 

administrative. 

{¶ 19} Relators argue that even if sections of the proposed ordinance are 

administrative, it should be submitted to the ballot because it includes a severability 
SUPREME COURT OF OHIO

7 

clause. They contend that if a court later determines that certain provisions are 

administrative, those provisions could be excised from the ordinance pursuant to 

the severability clause. However, “we have made clear that [where a proposed 

action is administrative], the board of elections is ‘required to withhold the initiative 

and referendum from the ballot.’ ” State ex rel. Ebersole v. Delaware Cty. Bd. of 

Elections, 140 Ohio St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 30, quoting State 

ex rel. Oberlin Citizens for Responsible Dev. v. Talarico, 106 Ohio St.3d 481, 2005-

Ohio-5061, 836 N.E.2d 529, ¶ 17. 

{¶ 20} Because a significant portion of the proposed ordinance is 

administrative, the board of elections properly refused to place it on the ballot.

C. Are relators entitled to a writ of mandamus? 

{¶ 21} To be eligible for a writ of mandamus, relators must “establish a 

clear legal right to the requested relief, a clear legal duty on the part of the board 

and its members to provide it, and the lack of an adequate remedy in the ordinary 

course of the law.” State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio69, 960 N.E.2d 452, ¶ 6. 

{¶ 22} Relators have failed to establish a clear legal right to their requested 

relief and a clear legal duty on the part of the board to provide it. As we have 

previously acknowledged, “[e]lection officials serve as gatekeepers, to ensure that 

only those measures that actually constitute initiatives or referenda are placed on 

the ballot.” Walker, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419, at ¶ 13. 

The Sensible Norwood proposed ordinance was properly rejected by the board of 

elections because it attempts to enact provisions that are beyond the scope of a 

municipality’s authority to enact. 

Writ denied. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

_________________________ 
January Term, 2016 

8 

Kalniz, Iorio, & Reardon Co., L.P.A., and Edward J. Stechschulte, for 

relators. 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T. 

Stevenson and Cooper D. Bowen, Assistant Prosecuting Attorneys, for respondent. 

Keith D. Moore, Norwood Law Director, and Timothy A. Garry Jr., 

Assistant Law Director, urging denial of the writ for amicus curiae city of Norwood. 

_________________