[Cite as State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of Elections, 137 

Ohio St.3d 45, 2013-Ohio-4489.] 

THE STATE EX REL. CINCINNATI FOR PENSION REFORM ET AL. v. HAMILTON 

COUNTY BOARD OF ELECTIONS ET AL. 

[Cite as State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of 

Elections, 137 Ohio St.3d 45, 2013-Ohio-4489.] 

Elections—Mandamus—Initiative—Proposed city charter amendment—Ballot 

summary—County board of elections—R.C. 3505.06—Board summary 

omits several essential components of proposed amendment—Failure to 

apprise voters of key elements of amendment invalidates ballot summary—

Writ granted in part. 

(No. 2013-1464—Submitted October 1, 2013—Decided October 10, 2013.) 

IN MANDAMUS. 

____________________ 

 Per Curiam. 

{¶ 1} Relators, Cincinnati for Pension Reform and electors Douglas 

Robinson and Gary Greenberg (collectively, “CPR”) qualified an initiative to 

amend the Cincinnati City Charter for the November 5, 2013 ballot. However, 

CPR objects to the ballot language adopted by respondent Hamilton County 

Board of Elections to describe the proposed amendment. CPR seeks a writ of 

mandamus to compel the board to adopt new ballot language and to compel 

respondent Jon Husted, Ohio Secretary of State, to approve the new language 

approved by the board. 

{¶ 2} We find that the board abused its discretion by adopting ballot 

language that omits two key provisions of the proposed charter amendment and 

accordingly grant the requested writ in part. We further find that CPR has not 

established entitlement to a writ against the secretary of state and accordingly 

deny that request. 
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Facts 

{¶ 3} CPR sponsored an initiative petition to amend the Cincinnati City 

Charter by adding a new Article XVII. The proposed amendment contains five 

sections. The following is a noncomprehensive summary of the proposed 

amendment. 

{¶ 4} Section 1 declares that the current model for providing retirement 

benefits to Cincinnati’s municipal employees is “not financially sustainable” and 

“must be adjusted immediately.” 

{¶ 5} Section 2 announces that future retirement benefits for city 

employees “must reflect the actual amounts saved by each and contributed for 

each by the City.” Section 2(A) mandates that “[t]he people of Cincinnati, by and 

through their government, shall not be compelled to contribute more funds to a 

City employee’s retirement benefits than that City employee has contributed to 

his or her own retirement benefits.” 

{¶ 6} Section 2(B) provides that persons employed by the city at the time 

the amendment passes may choose between the pension plans described in 

Sections 2(C) and 2(D), but anyone hired after the date of passage is not eligible 

to participate in the system described in Section 2(D). 

{¶ 7} The Section 2(C) pension plan consists of the following: 

Effective June 1, 2014, the aggregate retirement benefits 

paid to current and future City employees may not exceed the 

aggregate of (1) an employee’s individual contributions * * *; (2) 

the City’s contributions * * *; and (3) the return on an investment 

plan to which employee and employer contributions are made. 
January Term, 2013 

3

{¶ 8} The employee can contribute as much as he or she wishes, Section 

2(C)(v), but the city cannot contribute an amount greater than 9 percent of the 

employee’s base annual compensation, Section 2(C)(iv). 

{¶ 9} Thus, Sections 2(A) and 2(C) appear to be an effort to craft a 

“defined contribution” plan with an employer match. Although Section 2 imposes 

caps on the employer contribution (the gross employer contribution cannot exceed 

the gross employee contribution, and in all cases, the employer contribution is 

capped at 9 percent), the amendment never actually mandates an employer 

contribution or indicates whether the contribution formula is dollar-for-dollar or 

calculated at some lower rate.1

{¶ 10} Section 2(D) preserves the right of current city employees to 

continue participating in a “defined benefit” plan: 

This defined benefit shall not exceed an annual payment equal to 

an employee’s years of service multiplied by two percent of the 

average of the employee’s five highest years of base compensation. 

The amount of such payment shall not exceed 60 percent of the 

average of the employee’s five highest years of base compensation. 

The multiplier applicable to years of service that begin after June 

1, 2014 shall not exceed 1.5%. 

The defined-benefit plan created under Section 2(D), which does not make 

employer contributions contingent on employee contributions, appears to conflict 

with the cap on employer contributions in Section 2(A). 

{¶ 11} Section 3 imposes limits on cost-of-living adjustments. 

 

1. The amendment also fails to explain what will happen to employees hired between the passage 

date of the amendment (November 5, 2013) and the effective date of the Section 2(C) plan (June 

1, 2014). Presumably, those employees would be ineligible for any retirement benefits for up to 

the first seven months of their employment. 
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{¶ 12} Section 4 imposes an auditing requirement. Section 4(C) 

mandates: 

If any independent audit demonstrates that insufficient 

funds will be available to pay forecasted future obligations within 

ten years from the date of the audit’s completion, the City must 

forthwith create sufficient cost savings or new revenue that, when 

accumulated over the time between the adverse audit and the 

projected shortfall, will meet those forecasted future obligations. 

{¶ 13} Section 5 provides for enforcement of the amendment “to the 

maximum extent possible.” To that end, Section 5(E) vests standing in any 

Cincinnati resident, “whether injured or not,” to bring a civil or equitable action to 

enforce the amendment, places the burden of proof on the city to demonstrate that 

it is in compliance, and allows the plaintiff to recover reasonable attorney fees. 

{¶ 14} On September 3, 2013, Cincinnati City Council enacted Ordinance 

No. 263-2013, directing the board to submit the proposed charter amendment to 

the electors at the November 5, 2013 election. A copy of Ordinance No. 263-

2013 is attached to the complaint as Exhibit B. The ordinance included proposed 

ballot language summarizing the amendment. 

{¶ 15} CPR filed a written objection to city council’s proposed ballot 

language. On September 9, 2013, the board heard arguments from a number of 

parties regarding the proposed ballot language. 

{¶ 16} The board reconvened the next evening, September 10, 2013, and 

approved the following ballot language. 

 
January Term, 2013 

5

CHARTER AMENDMENT 

City of Cincinnati

A majority vote is necessary for passage 

An Amendment to the Charter of the City of Cincinnati to 

Add Provisions Relative to Pension and Retirement Plans for City 

Employees. 

Shall the Charter of the City of Cincinnati be amended to 

add Article XVII that would: 

1. Require the City of Cincinnati to pay forecasted pension 

obligation shortfalls by creating sufficient new revenues, which 

may include new or additional taxes and fees, and/or other revenue 

sources, and/or by implementing sufficient cost savings, which 

may include cuts to city programs or services, to fund any 

projected shortfall of the Cincinnati Retirement System which, as 

determined by an independent financial audit, would result in 

insufficient funds being available to pay forecasted future 

obligations of the Cincinnati Retirement System within ten years 

from the date of the audit’s completion; 

2. Require current City employees to choose to continue to 

participate in a defined benefit plan with maximum allowable 

percentages of salary provided pursuant to retirement benefits of 

individual employees or enroll in a defined contribution plan under 

which the aggregate retirement benefits paid by the Cincinnati 

Retirement System may not exceed the aggregate of an employee’s 

individual contributions, which can be made at any level, and the 

City of Cincinnati’s contributions, which shall not exceed the 

employee’s individual contributions, and shall not exceed nine 

percent; 
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3. Provide future employees with only the defined 

contribution plan described herein; 

4. Provide that no past or present City employee shall be 

entitled to collect retirement benefits while simultaneously earning 

income from the City or any other political subdivision or 

government agency or entity; 

5. Provide for a potential cost of living adjustment for 

beneficiaries of the Cincinnati Retirement System not to exceed 

the increase in a the [sic] consumer price index, but which shall not 

exceed a simple rate of 3% per annum, which cost of living 

adjustment may be temporarily suspended when necessary at the 

discretion of the City of Cincinnati; 

6. Provide for enforcement of this amendment to the extent 

permitted by law and further provide that any Cincinnati resident, 

whether injured or not, shall have the right to bring a civil or 

equitable action to enforce this amendment, and be entitled to have 

their attorneys fees and expenses paid by the City if they prevail? 

FOR THE AMENDMENT 

AGAINST THE AMENDMENT 

{¶ 17} CPR filed the instant action two days later, on September 12, 2013, 

naming as respondents the Hamilton County Board of Elections and Ohio 

Secretary of State Jon Husted. The respondents filed answers, as did the 

American Federation of State, County, and Municipal Employees Ohio Council 8 

and Ohio Chapter 1184 (collectively, “AFSCME”), whose motion for permissive 

intervention as respondents the court granted on September 24, 2013. 
January Term, 2013 

7

{¶ 18} The parties submitted briefs to the court in compliance with the 

accelerated schedule for expedited election cases set forth in S.Ct.Prac.R. 

12.08(A)(2). The court has also received and considered two amicus briefs, one 

from Cincinnati Organized and Dedicated Employees, Inc., and the other from the 

city of Cincinnati. 

{¶ 19} This cause is now before the court for consideration of the merits. 

Analysis 

Mandamus

{¶ 20} CPR objects both to language the board added to the summary and 

to language the board omitted. For a writ of mandamus to issue against the board, 

CPR must establish a clear legal right to compel the board to revise its ballot 

language, a corresponding clear legal duty on the part of the board to revise its 

ballot language, and the lack of an adequate remedy at law. State ex rel. Allen v. 

Warren Cty. Bd. of Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 

507, ¶ 8. CPR must prove these requirements by clear and convincing evidence. 

State ex rel. Orange Twp. Bd. of Trustees v. Delaware Cty. Bd. of Elections, 135 

Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d 441, ¶ 14. 

{¶ 21} Because of the proximity of the November 5 election, CPR has 

established that it lacks an adequate remedy in the ordinary course of the law. 

State ex rel. Ohio Liberty Council v. Brunner,125 Ohio St.3d 315, 2010-Ohio1845, 928 N.E.2d 410, ¶ 27. 

Clear legal right and clear legal duty

{¶ 22} When a local issue qualifies for the ballot, the board of elections 

may either use the entire text of the proposed charter amendment as ballot 

language or it may prepare and certify a condensed text so long as the text 

“properly describe[s]” the issue or amendment. R.C. 3505.06(E). The board must 

transmit its approved ballot language for local questions to the secretary of state 

for final approval. R.C. 3501.11(V). 
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{¶ 23} R.C. 3505.06 “serves to inform and protect the voter and 

presupposes a condensed text which is fair, honest, clear and complete, and from 

which no essential part of the proposed amendment is omitted.” State ex rel. 

Minus v. Brown, 30 Ohio St.2d 75, 81, 283 N.E.2d 131 (1972). The court 

evaluates proposed ballot language for local issues using the same three 

guidelines it uses to evaluate ballot language for proposed state-wide 

constitutional amendments. State ex rel. Kilby v. Summit Cty. Bd. of Elections, 

133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d 590, ¶ 19. These guidelines 

are as follows: 

{¶ 24} (1) Voters have the right to know what they are being asked to vote 

upon; 

{¶ 25} (2) Use of language in the nature of a persuasive argument in favor 

of or against the issue is prohibited; and 

{¶ 26} (3) The determinative issue is whether the cumulative effect of the 

technical defects in the ballot language is harmless or fatal to the validity of the 

ballot. State ex rel. Bailey v. Celebrezze, 67 Ohio St.2d 516, 519, 426 N.E.2d 493 

(1981); Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137, 141-142, 

519 N.E.2d 347 (1988). 

{¶ 27} The respondent board of elections suggests that publication of the 

full text of the proposed amendment, either in newspapers or at polling places, 

cures any defect in ballot language. However, the full text of the issue or 

amendment must always be posted in each polling place if the board chooses to 

use a condensed text. R.C. 3505.06(E). Therefore, if the court were to adopt the 

board’s theory, it would essentially mean an end to judicial review of ballot 

language. Rather than adopt such a principle, we turn to a consideration of the 

specific language added by and omitted by the board. 

 
January Term, 2013 

9

Language added to the summary by the board 

{¶ 28} CPR’s primary objection concerns the summary’s treatment of 

Section 4(C) of the proposed amendment. The full text of Section 4(C) provides: 

If any independent audit demonstrates that insufficient 

funds will be available to pay forecasted future obligations within 

ten years from the date of the audit’s completion, the City must 

forthwith create sufficient cost savings or new revenue that, when 

accumulated over the time between the adverse audit and the 

projected shortfall, will meet those forecasted future obligations. 

{¶ 29} The relevant ballot summary approved by the board reads as 

follows. 

Shall the Charter of the City of Cincinnati be amended to 

add Article XVII that would: 

1. Require the City of Cincinnati to pay forecasted 

pension obligation shortfalls by creating sufficient new revenues, 

which may include new or additional taxes and fees, and/or other 

revenue sources, and/or by implementing sufficient cost savings, 

which may include cuts to city programs or services, to fund any 

projected shortfall of the Cincinnati Retirement System which, as 

determined by an independent financial audit, would result in 

insufficient funds being available to pay forecasted future 

obligations of the Cincinnati Retirement System within ten years 

from the date of the audit’s completion. 

(Emphasis added.) 
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{¶ 30} CPR objects to the inclusion of the italicized language for multiple 

reasons, among them that the added language unfairly misrepresents the proposed 

amendment and that it constitutes improper persuasive argument designed to 

discourage voters from approving the amendment. 

Is the ballot language misleading?

{¶ 31} CPR contends that the board made the ballot language misleading 

by adding the phrase “which may include new or additional taxes and fees, and/or 

other revenue sources” as a gloss on the words “new revenue” and by expanding 

on the phrase “cost savings” by adding the words “which may include cuts to city 

programs or services, to fund any projected shortfall.” CPR presents two theories 

as to why this information is misleading. 

{¶ 32} First, CPR suggests that the expanded text may not be accurate 

because it conflicts with Section 1(B) of the proposed amendment, which makes it 

“unlawful for the City to create new revenue or cost savings to fund the pension 

deficit by raising taxes or fees or cutting city services.” But Section 1(B) is 

purely precatory. It states that taxes and fees “should not be raised” and city 

services “should not be reduced or jeopardized” in order to fund past or current 

retirement benefits. Section 1(B) contains no substantive provisions, and 

certainly none to conflict with the language added by the board of elections. 

{¶ 33} Alternatively, CPR asserts that the board is misleading voters by 

enunciating certain means, presumably unpopular ones, by which a shortfall could 

be overcome, while omitting other possibilities, such as selling assets and bonds 

or seeking federal and state grant money. 

{¶ 34} This court has disapproved ballot language on the grounds that it is 

misleading when the language would lead an average reader to draw a conclusion 

that is false. See, e.g., Bailey, 67 Ohio St.2d at 519-520, 426 N.E.2d 493 (use of 

word “presently” in conjunction with the phrase “at no cost to Ohio taxpayers” 

was misleading because it “creates the clear impression that, if the amendment is 
January Term, 2013 

11

adopted, Ohio taxpayers will be required to bear some of the cost” of 

implementing the amendment); State ex rel. Voters First v. Ohio Ballot Bd., 133 

Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 47 (summary ballot language 

that the amendment would “[m]andate the General Assembly to appropriate all 

funds as determined by the Commission” was “inaccurate and prejudicial” 

because it falsely indicated that the General Assembly had no discretion to refuse 

a request for funds). 

{¶ 35} The language added by the board in this case is not misleading, in 

the sense of leading the reader to draw a false conclusion. State ex rel. Commrs. 

of Sinking Fund v. Brown, 167 Ohio St. 71, 73, 146 N.E.2d 287 (1957) (where 

summary made it clear that proposed bonds would be general obligation of the 

state, alleged overemphasis on a new cigarette tax did not falsely suggest or imply 

that the debt would be payable solely by cigarette tax). 

{¶ 36} CPR is not entitled to a writ of mandamus on that basis. 

Is the language improperly persuasive?

{¶ 37} In both Bailey and Voters First, the court was troubled not just by 

the inaccurate implications of the language, but by the way those false 

implications were meant to sway the voters’ opinions of the measure in a specific 

direction. The Bailey court characterized the language as more than merely 

inaccurate: “It is in the nature of an argument against adoption of the 

amendment.” (Emphasis added.) Id., 67 Ohio St.2d at 520, 426 N.E.2d 493; see 

also Voters First at ¶ 48 (“In essence, the omission in the ballot board’s language 

* * * is in the nature of a persuasive argument against [the amendment’s] 

adoption”). 

{¶ 38} CPR argues that the language in this case is equally persuasive in 

nature and hence improper. CPR cites two cases: Beck v. Cincinnati, 162 Ohio St. 

473, 124 N.E.2d 120 (1955), and Jurcisin, 35 Ohio St.3d 137, 519 N.E.2d 347. 
SUPREME COURT OF OHIO

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{¶ 39} Beck involved a proposed tax levy for operating expenses. In 

certifying the issue for the ballot, the city council inserted into the caption the 

words “[i]f levy passes, there will be no city income tax in 1955 or 1956.” This 

court held that the city council exceeded its authority when it inserted the 

contested language. Id. at 475. 

{¶ 40} According to CPR, Beck stands for the proposition that the city 

council (or board of elections) cannot insert language that is “in the nature of 

persuasive argument,” even if the additional language is factually accurate. But 

the problem with the language in Beck was not that it was argumentative, but that 

it was an improper inducement. By inserting the contested language, the city 

council promised voters that if they voted for increased property taxes, they could 

prevent an income-tax increase, an inducement calculated to appeal to a certain 

segment of the electorate. “ ‘It is a matter of common knowledge that the 

majority of electors are not property holders and therefore undoubtedly were 

persuaded by the unauthorized phrase at issue.’ ” Id. at 476, quoting the trial 

court decision. 

{¶ 41} Beck is distinguishable for another reason. The issue in Beck was 

the inclusion of additional text in the caption of the ballot. The caption is 

governed by R.C. 3505.06(D), which restricts the permissible language to “a brief 

title descriptive of the question or issue below it, such as ‘Proposed Constitutional 

Amendment,’ ” along with a statement of the percentage of affirmative votes 

necessary for passage. A more accurate understanding of Beck would be that 

when it comes to the caption (as opposed to the summary language, which is 

governed by R.C. 3505.06(E)), nothing is permitted in the way of specifics about 

the proposal under consideration. Beck, 162 Ohio St. at 474, 124 N.E.2d 120 

(rejecting the contention that “there is no prohibition against the insertion of 

additional information in the caption of a ballot”); see also Alexander v. Toledo, 

168 Ohio St. 495, 156 N.E.2d 315 (1959). 
January Term, 2013 

13

{¶ 42} The second case CPR cites is Jurcisin, 35 Ohio St.3d 137, 519 

N.E.2d 347. The ballot issue in Jurcisin was a proposed charter amendment to 

create a police review board and an office of professional standards in the office 

of the director of public safety. This court found nothing improper or defective in 

the summary ballot language. “The language is not inaccurate, incorrect, or 

illegal. It is not confusing, misleading, or argumentative. It is not persuasive in 

nature * * *.” Id. at 141. 

{¶ 43} One of the specific objections in Jurcisin was that the summary 

was misleading because it failed to tell voters that passage of the proposed 

amendment would require a significant appropriation of city funds for the 

operation of the new review board. The court held that this was a permissible 

omission and then went on to observe in dicta that any reference to the need for an 

appropriation would be improper and in the nature of a persuasive argument in 

favor of or against the measure. Id. at 142. 

{¶ 44} CPR quotes Jurcisin to support its argument that it is improper to 

put in explanatory information about the consequences of a proposed measure, 

even if the information is accurate. If that were a correct reading of Jurcisin, the 

case would be in tension with the court’s more recent opinion in Kilby, 133 Ohio 

St.3d 184, 2012-Ohio-4310, 977 N.E.2d 590. 

{¶ 45} Kilby involved a proposed Akron municipal charter amendment 

that, among other things, would lengthen the terms of office for members of city 

council. Kilby filed a protest against the ballot language. According to Kilby, the 

ballot language amounted to a “sales pitch,” “electioneering,” and a “persuasive 

argument in favor of the proposed charter amendment.” Id. at ¶ 22. 

{¶ 46} This court rejected Kilby’s objection because even if the language 

was all those things, it was not inaccurate. Id. As the ballot summary stated, the 

amendment would eliminate the cost of an extra election and limit pay raises for 
SUPREME COURT OF OHIO

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council members. The court distinguished Beck on the grounds that Beck

involved a “statement of mere unauthorized speculation.” Id. 

{¶ 47} Based on Kilby, intervening respondent AFSCME argues that 

selective amplification in ballot language is permissible, so long as it does not 

render the ballot language misleading. AFSCME points to the following language 

in Voters First: ballot language “ ‘ “ought to be free from any misleading 

tendency, whether of amplification or omission.” ’ ” Voters First, 133 Ohio St.3d 

257, 2012-Ohio-4149, 978 N.E.2d 119, at ¶ 29, quoting Markus v. Trumbull Cty. 

Bd. of Elections, 22 Ohio St.2d 197, 203, 259 N.E.2d 501 (1970), quoting the trial 

court’s opinion therein. 

{¶ 48} CPR is correct that the Jurcisin court said it would be improper to 

include any explanation that passing the measure would require a new 

appropriation, but CPR is mistaken about the court’s reasoning. What the court 

said was 

[o]mission of a statement that the amendment would require 

appropriations from the city’s budget is not fatal to the language of 

the summary because the amendment itself does not make any 

reference to appropriations. Inclusion of such language would be 

in the nature of a persuasive argument in favor of or against an 

issue. 

(Emphasis added.) Jurcisin, 35 Ohio St.3d at 142, 519 N.E.2d 347. 

{¶ 49} The facts of the present case are closer to those in Kilby than 

Jurcisin. The language the board added did not introduce a new subject that was 

outside the terms of the proposed amendment. And there is nothing factually 
January Term, 2013 

15

inaccurate about the descriptive language. For this reason, we deny the writ with 

respect to the Section 4(C) language.2

Did the board violate R.C. 3505.06 by expanding, 

rather than condensing, the text? 

{¶ 50} Alternatively, CPR argues that the italicized language expands the 

summary text, in violation of R.C. 3505.06’s requirement of a condensed text. 

R.C. 3505.06(E) permits the board of elections to use as ballot language a 

“condensed text that will properly describe” the issue or question on the ballot. 

CPR suggests that by adding words not present in the amendment itself, the board 

expanded, rather than condensed, the text, in violation of the statute. CPR cites 

no authority to support this argument except to note the use of the word 

“condensed” in R.C. 3505.06. 

{¶ 51} The phrase “condensed text” in R.C. 3505.06(E) refers to a 

summary of the entire question or issue under consideration. And in this case, 

there is no dispute that the proposed ballot language (which is six paragraphs 

long) is a condensation of the full amendment, which runs three full pages. There 

is no support, in the text of R.C. 3505.06(E) or in this court’s jurisprudence, for 

the proposition that the word count for each subsection of the summary must be 

smaller than that of the corresponding section in the amendment. 

{¶ 52} Apart from the word count, CPR objects to the board’s use of 

language that does not appear in the actual amendment itself. The duty of the 

board is to ensure that the ballot language it approves does not “ ‘mislead, 

deceive, or defraud the voters’ ” and that the voters know what it is they are being 

asked to vote upon. Voters First, 133 Ohio St.3d 257, 2012-Ohio-4149, 978 

 

2. CPR also argues that the board inserted persuasive argument by shifting the order of 

presentation. In Section 4(C), the phrase “cost savings” appears before the phrase “new revenue,” 

but in the ballot language, the order is reversed. Whatever the motive for such a change, CPR has 

not demonstrated that the order of presentation would even have a persuasive impact, much less 

that the alteration makes the summary fundamentally unfair. 
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N.E.2d 119, ¶ 26, quoting Bailey, 67 Ohio St.2d at 519, 426 N.E.2d 493. A strict 

requirement that boards cannot draft ballot language using nouns or verbs that do 

not appear in the proposed amendment would unduly restrict a board’s discretion 

as it carries out its duties. 

{¶ 53} Finally, CPR contends that the board deviated from its statutory 

responsibilities by drafting language that purports to explain the potential 

“effects” of the amendment, rather than the actual terms of the amendment. 

However, the distinction CPR suggests is impossible to sustain. The difference 

between explaining the provisions of a law and explaining its consequences 

depends on where one stands on the issue. The language an amendment’s 

proponents may regard as a negative description of the law’s consequence could 

seem to its opponents merely a necessary explanation of the law’s meaning. 

{¶ 54} Based on the prior decisions of this court, the Hamilton County 

Board of Elections did not abuse its discretion, and so we deny the writ as to the 

additional text. 

CPR’s challenge to topics omitted by the board

{¶ 55} As a preliminary matter, AFSCME argues that CPR waived the 

omission claims by failing to raise them before the board of elections. 

AFSCME’s waiver argument is mistaken as a matter of law.3

 

{¶ 56} R.C. 3513.05 (paragraph 13) permits certain qualified electors to 

file protests against declarations of candidacy with the proper elections officials. 

R.C. 3513.05 requires election officials to conduct a “hearing” on the protest and 

provide notice to the protester (and presumably, a right to be heard). A statutory 

protest is an adequate remedy at law that, if not pursued, will preclude the 

issuance of an extraordinary writ. State ex rel. Lippitt v. Cuyahoga Cty. Bd. of 

 

3. The argument also appears at least partly mistaken on the facts. At the board of elections 

meeting on September 9, 2013, CPR did object to the omission of the word “reasonable” from the 

attorney-fees ballot language in Paragraph 5. 
January Term, 2013 

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Elections, 56 Ohio St.2d 70, 381 N.E.2d 1129 (1978); Maranze v. Montgomery 

Cty. Bd. of Elections, 167 Ohio St. 323, 148 N.E.2d 229 (1958). Therefore, the 

failure to raise an issue as part of the candidacy protest constitutes a waiver of that 

issue. State ex rel. Shumate v. Portage Cty. Bd. of Elections, 64 Ohio St.3d 12, 

15, 591 N.E.2d 1194 (1992). 

{¶ 57} But AFSCME has identified no comparable statute mandating a 

hearing to protest ballot language. The cases cited above discuss the importance 

of a record of the board proceedings, including testimony under oath. The 

transcripts in the record demonstrate that no such “hearing” occurred before the 

Hamilton County Board of Elections. And in the present case, a comparison of 

the ballot language to the full text of the proposed amendment is all the record the 

court requires. AFSCME’s waiver argument is not well taken. 

{¶ 58} When the board of elections elects to use a summary as ballot 

language, “any omitted substance of the proposal must not be material, i.e., its 

absence must not affect the fairness or accuracy of the text.” Voters First, 133 

Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 30. Summary ballot 

language must not omit any “essential part” of the proposed amendment. State ex 

rel. Minus v. Brown, 30 Ohio St.2d at 81, 283 N.E.2d 131. 

{¶ 59} Voters First illustrates the principles governing omission 

challenges to ballot language. Voters First involved a proposed constitutional 

amendment designed to change the manner by which Ohio sets Congressional and 

state legislative districts by creating a bipartisan commission to oversee the 

process. However, the ballot language omitted key information voters needed 

because it did not tell them who would select the commission members or what 

criteria the commission would use to draw new districts, even though the actual 

amendment spelled out both things. Id. at ¶ 34-40. Because the subject matter of 

the omissions “strikes at the very core of the proposed amendment,” id. at ¶ 41, 

this court ordered the Ohio Ballot Board to redraft the ballot language. 
SUPREME COURT OF OHIO

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{¶ 60} However, we held that it was permissible to omit more peripheral 

details, such as the name of the commission and the provisions guaranteeing that 

redistricting would be an open process. Id. at ¶ 44. Such omissions did not 

“prevent[] voters from knowing the substance of the proposal being voted upon or 

mislead[], deceive[], or defraud[] voters.” Id.; see also Kilby, 133 Ohio St.3d 184, 

2012-Ohio-4310, 977 N.E.2d 590, ¶ 24 (summary of amendment to change the 

length of council members’ terms could omit information about which election 

year the change would go into effect, because that information was “immaterial” 

to the “critical substance” of the proposed amendment). 

{¶ 61} With these principles in mind, we turn to consideration of the 

omissions cited by CPR. 

The omission of Section 2(A)

{¶ 62} CPR protests the omission of Section 2(A) of the amendment from 

the ballot language. Section 2(A) provides that “[t]he people of Cincinnati, by 

and through their government, shall not be compelled to contribute more funds to 

a City employee’s retirement benefits than that City employee has contributed to 

his or her own retirement benefits.” CPR describes Section 2(A) as an essential 

provision “designed to protect City taxpayers.” 

{¶ 63} Section 2(A) merely restates the definition of a definedcontribution plan in Section 2(C), and that information already appears in the 

summary ballot language. We conclude that Section 2(A) has not been omitted. 

{¶ 64} The request for a writ of mandamus in connection with the 

omission of Section 2(A) language is hereby denied. 

The omission of part of Section 2(C)

{¶ 65} Section 2(C) sets out the defined-contribution plan that will apply 

to all city employees hired on or after June 1, 2014, as well as those current 

employees who select this plan. Section 2(C) provides that participants will 

receive retirement funds from three sources: the employee’s contribution, the 
January Term, 2013 

19

city’s contribution, and “the return on an investment plan to which employee and 

employer contributions are made.” 

{¶ 66} The ballot language omits the third source of retirement revenue. 

As the plan is described in Paragraph 2 of the summary, 

the aggregate retirement benefits paid by the Cincinnati Retirement 

System may not exceed the aggregate of an employee’s individual 

contributions, which can be made at any level, and the City of 

Cincinnati’s contributions, which shall not exceed the employee’s 

individual contributions, and shall not exceed nine percent. 

This language does not just omit critical information; it misrepresents the terms of 

the new defined-contribution plan. Anyone reading the ballot language alone 

would reasonably believe that the plan is nothing more than a savings account 

with a deferred-compensation contribution from the employer. Nothing indicates 

that the account will even accrue simple interest, much less potentially grow (or 

shrink) depending on how the investments fare. 

{¶ 67} By any reasonable measure, the terms of the new pension plan for 

all future city employees lie at the core of this amendment. By not telling voters 

that employees can increase or decrease their retirement savings through 

investments, the ballot language does not afford sufficient information for voters 

to decide whether this is the plan they wish to adopt. This is comparable to the 

ballot language in Voters First telling voters that a new commission would 

assume responsibility for redistricting, but not telling voters how the commission 

members would be selected. 

{¶ 68} We therefore grant the writ of mandamus in part and order the 

board of elections to draft new ballot language that reflects the provisions of 

Section 2(C) of the proposed charter amendment. 
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The omission of Section 2(F) 

{¶ 69} CPR also characterizes Section 2(F) as an essential taxpayerprotection provision. Section 2(F) provides: 

No employee hired after the date of the Amendment shall 

maintain a property or contractual right to any retirement funds 

above and beyond those which he or she has contributed, along 

with the investment return earned by those funds. City Council 

and Voters maintain the right to reduce future benefits, as required 

by this Amendment or otherwise. 

{¶ 70} Section 2(F) is an essential component of the proposed 

amendment, for much the same reason as Section 2(A). As presently written, the 

ballot language creates the impression that an employee hired in the future who 

contributes money to the pension plan is guaranteed some reciprocal contribution 

by the city and that in the event of future shortfalls, the city may have to seek new 

revenue or enact cost-saving measures elsewhere to ensure those contributions.4

{¶ 71} But in fact, under Section 2(F), even the first dollar of city 

contributions is entirely voluntary, and the city can decide at any time to end its 

contributions, even retroactively. This would be essential information to both 

advocates for and opponents of the proposal. 

{¶ 72} We therefore grant the writ of mandamus in part and order the 

board of elections to draft new ballot language that reflects the provisions of 

Section 2(F) of the proposed charter amendment. 

 

 

4. This confusion is evident in the briefing. The city of Cincinnati, in its amicus brief, argues that 

the amendment would require the city “to fund pension shortfalls before it funds basic services, 

such as police, fire, and infrastructure projects.” 
January Term, 2013 

21

The omission of part of Section 3 

{¶ 73} Paragraph 5 of the summary informs voters that cost-of-living 

adjustments are capped at 3 percent per annum and that the city may suspend such 

increases “when necessary at the discretion of the City.” CPR objects to the 

absence of any reference in the summary to Section 3(C), which prohibits the city 

from raising taxes or reducing services to fund cost-of-living adjustments. 

{¶ 74} A voter reading Paragraph 5 would likely believe that the city has a 

choice as to how to pay future cost-of-living increases if there is a budget 

shortfall: either through suspending such increases or by raising taxes or reducing 

services elsewhere, whereas Section 3(C) makes clear that one of those options is 

prohibited. 

{¶ 75} However, this is not core, essential information, simply because 

the amount of money involved is relatively small compared to the overall impact 

of the total amendment. This is especially true given the fact that as attrition 

shifts the workforce from the defined-benefit plan to the defined-contribution 

plan, no one will receive cost-of-living adjustments anymore. Inevitably, a 

summary will have to omit some important but nonessential information. 

{¶ 76} The request for a writ of mandamus in connection with the 

omission of Section 3(C) language is hereby denied. 

The omission of part of Section 4 

{¶ 77} Section 4 provides that the city’s retirement plan must be audited 

annually by an independent auditor. CPR notes that the ballot language does not 

include the requirement that the audit occur annually. “The timing requirement is 

an indispensable provision,” CPR asserts, because “[w]ithout it, all of section 4 

would be rendered meaningless, because there would be no requirement for the 

city to conduct an audit.” This argument lacks merit.

{¶ 78} The timing of the audits is not a key element of the proposed 

amendment. In this case, the “core” of the proposed charter amendment is the 
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22 

effort to guarantee solvency in the pension fund by changing the manner in which 

benefits are calculated and by requiring the city to take specified affirmative steps 

to close any projected deficit in the funds. The timing and frequency of audits by 

the city would seem to be a matter of secondary importance. Voters First, 133 

Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 44 (guarantees that 

redistricting process would be open to public view was not core component of 

proposed amendment).

{¶ 79} CPR argues that Section 4, which creates the duty to cut costs or 

generate new revenue if an audit forecasts a deficit in the fund, would be rendered 

meaningless without a requirement that the city commission an audit annually. 

Apparently, CPR believes that only an independent audit commissioned by the 

city can trigger the duty created by this provision. We read this provision 

differently.

{¶ 80} The caption to Section 4 mandates that the retirement systems must 

be audited annually, and Section 4(A) provides for auditing by an independent 

auditor. Section 4(B) then sets forth the data that must be provided by “[t]he audit 

specified in Division (A).” However, Section 4(C), the automatic trigger, uses 

very different language: “If any independent audit demonstrates that insufficient 

funds will be available * * *.” (Emphasis added.) Unlike Section 4(B), Section 

4(C) does not limit itself to the audit mandated by Section 4(A). So, for example, 

if a private citizen performed an audit of pension funds based on documents 

obtained through the Ohio Public Records Act, and that audit projected a ten-year 

shortfall, under the plain terms of Section 4(C), that private, independent audit 

would trigger the mandatory provisions. The point here is that because the 

automatic triggers are not dependent on the city’s commissioning the audit, the 

frequency with which the city is required to commission audits is not essential 

information. 
January Term, 2013 

23

{¶ 81} The request for a writ of mandamus in connection with the 

omission of Section 4(A) language is hereby denied. 

The omission of part of Section 5 

{¶ 82} Finally, CPR cites two omissions from Section 5 that do not affect 

the fairness or accuracy of the text. Section 5(C) provides that the amendment 

does not apply to city employees enrolled in a state-employee-retirement system. 

CPR claims that this omission is intended “to mislead voters into thinking that the 

Amendment applies to all city employees, rather than a much narrower subset of 

city employees.” (Emphasis sic.) But one can safely presume that such 

employees are aware that they receive their pension benefits from the state, not 

from the city, and therefore would not be misled into opposing the amendment by 

incorrectly thinking it would apply to them. 

{¶ 83} Second, CPR objects to the fact that the summary indicates that 

litigants shall recover attorney fees without including the qualifier that attorney 

fees must be reasonable. Practicing attorneys will recognize the significance of 

the distinction between “attorney fees” and “reasonable attorney fees,” but CPR 

cannot demonstrate that the distinction would have any meaning to the lay public, 

much less that the omission makes the summary unfair or inaccurate. 

{¶ 84} The request for a writ of mandamus in connection with the 

omission of Section 5 language is hereby denied. 

CPR is not entitled to relief against Secretary Husted

{¶ 85} CPR does not dispute Secretary Husted’s contention that his only 

statutory responsibility is to review ballot language for form, not for content. 

CPR does not contend that a writ must issue against Secretary Husted in order to 

afford CPR complete relief. We find that no relief is proper against the secretary. 

Conclusion

{¶ 86} Based on the foregoing, CPR has established its entitlement to the 

requested extraordinary relief in part. We grant a writ of mandamus to compel 
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the Hamilton County Board of Elections to produce amended ballot language that 

incorporates Sections 2(C) and 2(F) of the proposed charter amendment. The writ 

is denied in all other respects. 

Writ granted in part 

and denied in part. 

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

O’NEILL, JJ., concur. 

PFEIFER, J., dissents and would deny the writ in its entirety. 

____________________ 

Langdon Law, L.L.C., David R. Langdon, and Joshua B. Bolinger; and 

Finney, Stagnaro, Saba & Patterson, L.P.A., and Christopher P. Finney, for 

relators. 

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

Stevenson and Colleen M. McCafferty, Assistant Prosecuting Attorneys, for 

respondent Hamilton County Board of Elections. 

Michael DeWine, Attorney General, and Kristopher J. Armstrong and Erin 

Butcher-Lyden, Assistant Attorneys General, for respondent Jon Husted. 

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, 

and J. Corey Colombo, for intervening respondents Ohio Council 8 and Ohio 

Chapter 1184, AFSCME. 

Minnillo & Jenkins Co., L.P.A., and Christian A. Jenkins, urging denial of 

the writ for amicus curiae Cincinnati Organized and Dedicated Employees, Inc. 

John P. Curp, City Solicitor, and Aaron M. Herzig, Deputy City Solicitor, 

urging denial of the writ for amicus curiae city of Cincinnati. 

_________________________