concurring in part and dissenting in part.
{¶ 36} I concur in the majority’s decision to grant leave to file an amended complaint and to dismiss the claim for a writ of mandamus.
{¶ 37} I dissent from the majority’s decision to deny the writ of prohibition based on technical arguments. I would reach the merits. It is a seductively easy slide from the golden fortress of judicial restraint to the desolate valley of judicial indifference. In this case, this court has been seduced into the valley by hypertechnieal arguments that cause it to disregard the initiative petition’s clear statutory violations.
{¶ 38} Amendments to the Constitution of Ohio ought not to be made lightly. That is why our General Assembly enacted R.C. 3519.01(A), which requires petitions to amend the Constitution to include the proposed constitutional amendment, a summary of the amendment, and a certification of the Attorney General that the summary accurately reflects the proposed amendment. A summary is especially important in this case because the second sentence of the proposed amendment is expansive and susceptible of more than one interpretation.
{¶39} The language of R.C. 3519.01(A) and 3519.05 is crystal clear, yet the initiative petitioners did not comply with it. Despite his obligation to follow the law, the Secretary of State also ignored R.C. 3519.01(A) and 3519.05. He certified the original initiative petition and the supplemental initiative petition even though they plainly do not comply with R.C. 3519.01(A) and 3519.05. Whether the Secretary of State’s overt political interest in the passage of the proposed amendment influenced his decision is unknowable; the perception of influence is undeniable.
{¶ 40} The majority relies on Section lg, Article II of the Ohio Constitution and res judicata to fashion an opinion that undermines the relators’ diligent and extensive efforts to bring to light a blatant disregard for a statutory mandate. *490The res judicata rationale is borderline ridiculous. The court of appeals’ decision upon which this court relies states in its entirety, “Upon review of relators’ petition for a writ of mandamus and petition for a writ of prohibition, and after consideration of the issues raised at oral argument, this court finds relators have failed to demonstrate their right to either a writ of mandamus or a writ of prohibition under the particular facts of this case.” State ex rel. Essig v. Blackwell (Sept. 20, 2004), Franklin App. No. 04AP-939. We cannot determine from this opinion the grounds upon which the court of appeals made its determination. Yet this court determines that it cannot decide the issue because it has already been decided. The highest court in this state should provide a better reason to justify overlooking clear statutory violations.
{¶ 41} Turning to the majority’s Section lg, Article II rationale, I am equally unimpressed. As a preliminary matter, the majority opinion never explains how Section lg was violated; it simply concludes that it was.
{¶ 42} Based on the following facts, it is possible that Section lg was violated. The 40th day before the election was September 23. The Secretary of State certified the signatures on the original part-petitions on September 17, despite the petitions’ obvious noncompliance with R.C. 3519.01(A) and 3519.05. The relators submitted a protest on September 20. Their protest was denied by the Secretary of State, as “not well taken,” on September 23; this response is only slightly less informative than the court of appeals’ decision. The relators filed the action before us on September 24.
{¶ 43} It is possible to conclude, as the majority apparently does, that the relators did not claim a legal deficiency until September 24. See State ex rel. Schwartz v. Brown (1972), 32 Ohio St.2d 4, 61 O.O.2d 151, 288 N.E.2d 821. It is more reasonable to conclude that the relators claimed a legal deficiency on September 20, before the constitutional deadline.
{¶ 44} In determining that the implausible Section lg violation allows this court to disregard the R.C. 3519.01(A) and 3519.05 violations, the court is essentially giving the Secretary of State a free pass to ignore clear statutes and to use tactics of delay to achieve a result in which he has a blatant political interest. I believe that the better course would be to reach the merits and find that R.C. 3519.01(A) and 3519.05 were violated. The relators have asserted their rights in a timely way at every opportunity. It is regrettable that today this court vindicates the Secretary of State’s tactics and thereby denies the relators meaningful review of their claims. Three cheers for judicial indifference.
Schottenstein, Zox & Dunn Co., L.P.A., John P. Gilligan, Daniel M. Anderson and Catherine L. Strauss; Law Offices of Donald J. McTigue and Donald J. McTigue, for relators. Chester, Willcox & Saxbe, L.L.P., Donald C. Brey and Elizabeth J. Watters, for respondent. Jones Day, Michael A. Carvin, Matthew A. Kairis and Chad A. Readier; Langdon & Shafer, L.L.C., David R. Langdon and Jeffrey A. Shafer, for intervening respondents.