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July 27, 2020

Speaker Pro Tempore Jim

Butler Majority Floor Leader Bill Seitz
77 S. High St., 14th Floor 77 S. High St., 14th Floor
Columbus, OH 43215 Columbus, OH 43215
Email: [email protected] Email: [email protected]

Assistant Majority Floor Leader Anthony Majority Whip Jay Edwards

DeVitis 77 S. High St., 14th Floor
77 S. High St., 11th Floor Columbus, OH 43215
Columbus, OH 43215 Email: [email protected]
Email: [email protected]

Assistant Majority Whip Laura Lanese

77 S. High St., 14th Floor
Columbus, OH 43215
Email: [email protected]

PRIVILEGED AND CONFIDENTIAL

Dear Legislative Leaders of the Ohio House of Representatives of the 133rd General Assembly,

I am aghast at the allegations leveled by the United States Department of Justice against Speaker
Larry Householder. I write today to offer you confidentially my Office's best legal advice regarding
the choices that are inevitably before you. This is not merely my legal opinion. This letter has
been researched, written, edited and recast by some of the best minds in the Attorney General's
Office, including both my senior team and career attorneys. It represents the consensus of well
over a century of legal experience, and is offered because however you choose, your choices must
withstand legal challenge.

The Presumption of Innocence. Two competing virtues are tied up in this moment of crisis. The
first is the American presumption of innocence. Mr. Householder and the others arrested are not
only innocent -- they are in fact innocent, and they remain so until a jury of their peers finds them
guilty by proof beyond a reasonable doubt.

The second of these two competing virtues is the integrity of the public business -- that the people
of Ohio believe it should be, and that it actually is, conducted transparently and honestly and
ethically for their benefit.

30 E. Broad Street, 17th Floor, | Columbus, OH | 43215

www.OhioAttorneyGeneral.gov
Legislative Leaders
Re: Speaker Larry Householder p|2
July 27, 2020

And so, this question is inevitably before you: Shall Mr. Householder remain Speaker of this House
with these allegations made public, but undecided in a court of law? To decide not to take up the
question is to take it up without debate, and is to decide, "Yes, he shall remain."

The first virtue does not decide the second. While all defendants are not guilty until an admission
or a verdict, this is only with respect to the question of criminal guilt -- whether the Court may
impose a criminal sentence. It does not apply to other matters. Facts that do not give rise to proof
of criminal guilt beyond reasonable doubt may still justify non-criminal sanctions or responses.

A spouse accused of abusing children is innocent until proven guilty. But the facts underlying the
accusation may form part of the basis for a civil restraining order, and grounds for divorce.
Similarly, a CEO accused of embezzlement or other crimes against the institution he leads enjoys
the presumption of innocence with regard to the crime, but the board of directors should still act
for the best interests of the institution to prevent further losses.

It is for these reasons that this question is before the House.

How may the House be called into session? Under House Rule 1, only the Speaker may set and
alter the session schedule for the House of Representatives. In this instance no sessions are
scheduled in the near future and any that are scheduled are illusory, as the Speaker has the authority
to cancel them. Further, it seems unlikely that the current Speaker would schedule a session at
which he might be sanctioned.

Some suggest that House Rule 16 allows the President Pro Tempore to schedule and call a session
in the Speaker’s absence. The term “absence” is not defined in the House Rules. Applying an
everyday usage standard to that rule, “absence” would mean not present, and not able to be present.
In applying the term “absence” to the Speaker here, the House could consider how it has applied
that term under other House Rules (e.g. House Rules 23 and 52) and in past practice.

In any event, I find no controlling authority on the question of the authority of the Speaker Pro
Tempore to schedule and call to order a session when the Speaker is not absent, but the argument
contra suggests using a better alternative if one is available. Why go through the difficulty of this
debate and decision, if it would be vulnerable to a collateral attack based on an improperly called
session? The Ohio Constitution offers an alternative through which the Governor may convene
the General Assembly. Article III, Section 8, of the Ohio Constitution provides:

The governor on extraordinary occasions may convene the general assembly by

proclamation and shall state in the proclamation the purpose for which such special session
is called, and no other business shall be transacted at such special session except that named
in the proclamation, or in a subsequent public proclamation or message to the general
assembly issued by the governor during said special session, but the general assembly may
provide for the expenses of the session and other matters incidental thereto.
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Re: Speaker Larry Householder p|3
July 27, 2020

While the term “extraordinary occasions” is not defined in the Constitution or statute it is
reasonable to conclude that federal charges against the Speaker of the House in the largest bribery
scheme in Ohio history would fit that bill.

In terms of mechanics, the Constitution requires that the Governor issue a proclamation calling the
special session. The proclamation must state the purpose for the special session, and the business
of the special session is limited to that which is stated in the proclamation. Here, the proclamation
for a special session could be called to consider certain subjects, for example, the removal,
expulsion, or impeachment of the Speaker.

Given that the Governor can call a special session of the General Assembly, the next question is
what process is used to request a session. There is no constitutional provision setting forth any
particular method the General Assembly must use to request that the Governor convene a special
session. In the absence of the any express requirement, members of the General Assembly may
use any reasonable means to convey this request, including by telephone, email, or letter.

Once the session is convened, the members have several options available to them.

Potential actions by the House. There are three mechanisms the House may employ if it wishes
to seek to remove the current Speaker from directing the public business of the House. All three
require the House to be in session, and two of them require action by the Senate.

1. Expulsion of the member. Article II, Section 6 of the Ohio Constitution allows the House of
Representatives to expel a member. Under this provision:

Each house may punish its members for disorderly conduct and, with the concurrence of
two-thirds of the members elected thereto, expel a member, but not the second time for the
same cause.

In order to expel the Speaker under this provision the House would have to establish that the
Speaker engaged in disorderly conduct and two-thirds of its members would need to concur. If it
were able to do so, the Speaker would be expelled from the House entirely, not just from the
Speakership.

There is no precedent, statute or House Rule that speaks to expelling a sitting House Speaker or
member to which we can turn for guidance. However, Art. II, Section 6 of the Ohio Constitution
makes each House the judge of the qualifications of its own members. This arguably gives the
House the authority to determine what qualifies as disorderly conduct for which a member can be
expelled by two-thirds vote. Whether expulsion under these circumstances amounts to a removal
from the seat or from a session has not been considered by an Ohio Court. However, when the
United States Supreme Court considered nearly identical language contained within the U.S.
Constitution, it concluded that expulsion for “disorderly behavior” is removal from the seat. That
authority could be relied upon here. But even if it is, the expulsion would not likely be permanent.
Legislative Leaders
Re: Speaker Larry Householder p|4
July 27, 2020

Art. II, Section 6’s prohibition against expelling a member twice for the same conduct seems to
contemplate a scenario in which the voters could return an expelled member to the House and not
be expelled again for the same disorderly conduct.

That a member can return to the House after being expelled is the primary distinction between
impeachment and expulsion. Expulsion is the lesser of the two punishments and leaves open the
ability of a member to return to the House for some future General Assembly.

On the other hand, and as discussed below, impeachment results in removal from office and in
disqualification from holding any state office in the future. By providing for both expulsion and
impeachment the framers of our Constitution clearly intended to give the House the option to either
remove a member for a term or to disqualify a member for life. Finally, because expulsion involves
the House expelling a properly elected member without the voters who elected him having a role
in the procedure, it is likely that a court could consider whether the expulsion was appropriate
under the Ohio Constitution.

2. Removal from the Speakership only. The second option for the House would be to remove
Speaker Householder from his position as Speaker of the House, although this probably requires a
statute that would have to be adopted by the House as well as by the Senate. The authority for
doing so is set forth in Article II, Section 38 of the Ohio Constitution, “Removal of officials”,
which provides:

Laws shall be passed providing for the prompt removal from office, upon complaint
and hearing, of all officers, including state officers, judges and members of the general
assembly, for any misconduct involving moral turpitude or for other cause provided by
law; and this method of removal shall be in addition to impeachment or other method of
removal authorized by the constitution.

Article II, Section 7 of the Ohio Constitution establishes the Speaker as the presiding officer of the
House of Representatives. Thus, the Speaker is a state officer who, pursuant to Ohio Const. Art.
II, Section 38, can only be removed from that position in accordance with a law that allows for his
removal. General removal statutes enacted pursuant to Art. II, Section 38 cover how and when
certain public officials can be removed from office, entirely. See, R.C. 3.07 - R.C. 3.10. There is
not, however, a statute that specifically addresses how to remove the Speaker only from the
Speakership, as opposed to from his seat. Thus, legislation is constitutionally required to remove
the Speaker from his position.

The conclusion that removal legislation would be necessary here is not altered by the fact that
Mason’s Manual of Legislative Procedure provides a path for removing the presiding officer of a
legislative body. By way of background, Article II, Section 7 of the Ohio Constitution permits the
House and the Senate to “determine its own rules of proceedings.” Pursuant to this authority the
Ohio House had adopted its own “Rules of the House of Representatives." It has also adopted
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Re: Speaker Larry Householder p|5
July 27, 2020

Mason’s Manual of Legislative Procedure as its parliamentary guide “in all cases not provided for
in…the [House] Rules.” Ohio House Rule 116.

The House rules do not specifically provide a procedure for removing the Speaker of the House,
nor do they give the House the authority to do so. Because removal is not covered by the House
Rules, it could be argued that Mason’s Manual applies to fill the gap. Section 581 of Mason’s
Manual, “Removal of Presiding Officer” provides that “a presiding officer who has been elected
by the house may be removed by the house upon a majority vote of all members elected, and a
new presiding officer pro tempore elected and qualified.”

The problem with relying on Mason’s Manual for removal is that the Ohio Constitution
specifically provides that removal of officers can only be done in accordance with removal laws,
not rules. Use of the word “laws” contemplates a statute, passed by both Houses of the General
Assembly and signed by the Governor, that enjoys the transparency and consensus that is
emblematic of our legislative process. Mason’s Manual itself recognizes that the constitutional
requirement for removal laws trumps what is set forth in Mason’s rules. Section 6.2 of Mason’s
Manual provides: “[a] constitutional provision regulating procedure controls over all other rules
of procedure.” Simply put, Art. II, Section 38 preempts Mason’s procedure for removal.

The conclusion that removal may only be by law, not rule, is also not altered by Ohio Const. Art.
II, Sec. 7. First, while Art. II, Section 7 allows each House to adopt rules for proceeding, it also
requires that the mode of organizing each House “shall be prescribed by law.” Choosing the
Speaker of the House falls within “the mode of organizing the House,” which is why the process
for electing the speaker is provided for “by law.” See, R.C. 101.11-101.13. If electing the Speaker
is a “mode of organizing” the House that must be done pursuant to “law," so too must removing
the Speaker. Logically, electing and removing are different aspects of the “mode of organizing”
and must be effectuated in the same manner – by law.

Second, to the extent that it is argued that the process for removing the Speaker is a “rule of
proceeding,” Section 6.2 of Mason’s Manual once again leads directly back to Art. II, Section 38.
That is, even assuming that removal is a matter of proceeding, Art. II, Section 38 of the
Constitution regulates the procedure for accomplishing removal, and therefore “controls” over
Mason’s conflicting rule of procedure. See, Mason’s Manual, Rule 6.2.

The reasoning to support this analysis might look like this:

 The Constitution, adopted by the people, controls the acts of the General Assembly.
 The Revised Code, adopted by both chambers of the General Assembly, controls the
individual chambers, but is inferior to the Constitution.
 The House rules, adopted by the House, control the proceedings of the House, but are
inferior to the Constitution and the Revised Code.
Legislative Leaders
Re: Speaker Larry Householder p|6
July 27, 2020

 Mason’s Rules, adopted to fill in the procedural gaps of the House rules, are inferior to the
Constitution, the Revised Code and the House rules.

Regarding reviewability, there is currently no statute that covers removing the Speaker from the
Speakership, but the Ohio Constitution provides authority to pass one. There is nothing to suggest
that a Speaker could not mount a facial or as-applied challenge to a newly-enacted removal statute,
but the ultimate success of such an action is questionable.

3. Impeachment. A final option for the House would be to impeach the Speaker under Article II,
Section 23 of the Ohio Constitution. Like a new removal statute, this would require Senate action.

Under this provision:

The House of Representatives shall have the sole power of impeachment, but a majority of
the members elected must concur therein. Impeachments shall be tried by the Senate; and
the Senators, when sitting for that purpose, shall be upon oath or affirmation to do justice
according to law and evidence. No person shall be convicted, without the concurrence of
two-thirds of the Senators.

If the House of Representatives impeaches the Speaker by a majority vote, the impeachment must
be tried by the Senate. A separate constitutional provision provides the legal finding that the
Senate must make in order to remove the Speaker from office. Under Article II, Section 24 of the
Ohio Constitution:

The Governor, Judges, and all state officers, may be impeached for any misdemeanor in
office; but judgment shall not extend further than removal from office, and disqualification
to hold any office under the authority of this State. The party impeached, whether convicted
or not, shall be liable to indictment, trial, and judgment, according to law.

In order to remove the Speaker from office and disqualify him from holding any state office, the
Senate would have to convict the Speaker of any misdemeanor in office by a concurrence of two-
thirds of its members. Neither the Constitution nor case law define the term “misdemeanor in
office” as used in Art. II, Section 23. Generally speaking, a criminal misdemeanor is a much lower
level offense than the multiple federal felonies leveled against the Speaker. In any event, articles
of impeachment do not need to identify a statutory misdemeanor in order to be actionable under
Art. II, Section 23. It is reasonable to conclude that the “misdemeanor in office” language provides
a floor for impeachment grounds—not a ceiling—and that impeachment is an option where the
allegations involve federal charges for one of the largest bribery schemes in Ohio history. Further,
the impeachment process is separate from—and independent of—the criminal one. The charging
documents can, and often will be different, which conceivably could lead to differing outcomes.

Finally, a word on a court’s ability to review an impeachment. Based on existing federal precedent
impeachment is not likely reviewable by a court because involving the judiciary in the
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Re: Speaker Larry Householder p|7
July 27, 2020

impeachment process would eviscerate the separation of powers doctrine on which our democracy
is based.

Each course of action that I have outlined carries corollary results that must be carefully evaluated.
That evaluation should factor in a court’s ability to review the outcome of each of the three
processes outlined above. If finality, with the lowest possibility of a long, drawn-out judicial
review is the goal, impeachment is the obvious option. If speed is the primary objective, perhaps
expulsion may serve best. And to leave a good-government legacy to guide future decision-
makers, a statute providing for a process to unseat a legislative leader by a simply no-confidence
vote -- a provision that exists in many democracies -- might be the best choice.

This is a time for the type of thoughtful deliberation this body is known for and for which it is
respected. Only the House itself can make these choices.

Finally, a word on privilege: this letter is protected by attorney-client privilege. That privilege
belongs to the client, not to the attorney -- you may waive it, but I may not. In this matter of urgent
public interest, transparency may help mend the tattered public trust. That, too, is a matter solely
within your hands.

Should you have further questions, this Office stands ready and willing to offer further guidance.

Yours,

Dave Yost
Ohio Attorney General