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Strickland Veto Invalid, Brunner Directed To Accept and Process 2006 Product Liability Bill

2007-0209. State ex rel. Ohio Gen. Assembly v. Brunner, 2007-Ohio-3780.
In Mandamus. Writ granted.
Moyer, C.J., Lundberg Stratton, O'Connor and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2007/2007-Ohio-3780.pdf Adobe PDF Link opens new window.

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(Aug. 1, 2007) The Supreme Court of Ohio today granted a writ of mandamus holding that Governor Ted Strickland's veto of a bill enacted during the final days of the 2006 Ohio General Assembly session was invalid, and directing Secretary of State Jennifer Brunner to accept and process the bill, Am Sub. S.B. No. 117, as duly enacted legislation. The Court's 5-2 decision was authored by Justice Robert R. Cupp.

After adopting S.B. 117, which restricts product liability lawsuits, on December 14, 2006, the House of Representatives adjourned on December 21 and the Senate adjourned sine die (indefinitely) on December 26, thereby officially ending the 126th General Assembly session. A required “enrolled” copy of the bill signed by the presiding officers of the Ohio House and Senate was presented to then-Governor Bob Taft for his review on December 27, 2006, one day after the legislative session was adjourned. Taft, who indicated in a press release that he intended to allow the bill to become law without his signature, filed it unsigned with former Secretary of State Ken Blackwell's office on Friday, January 5, 2007, the last working day before both officials' terms of office expired. Blackwell recorded his receipt of the bill from the governor on January 5.

On Monday, January 8, 2007, Brunner succeeded Blackwell as secretary of state and Strickland succeeded Taft as governor. On that same day, Strickland sent Brunner a written request to return the unsigned copy of Am. Sub. S.B. 117 to the governor's office. Strickland's request indicated his belief that the ten-day time period (excluding Sundays) within which the governor had authority to veto the bill had not begun until the bill was presented to Taft on December 27, 2006, and that the deadline for a veto had therefore not expired. Brunner complied with Strickland's request and returned the unsigned bill to the governor's office. Later that day, Strickland refiled the bill with the secretary of state's office, this time with a veto message attached. Brunner accepted the refiled bill and made official note that it had been vetoed.

On February 2, 2007, the Ohio General Assembly, Ohio Senate President Bill Harris and Ohio House of Representatives Speaker Jon Husted, filed a petition with he Supreme Court seeking a writ of mandamus to compel Brunner, to (1) “change the entry in both the paper and electronic Journals she keeps to reflect the fact that Amended Substitute Senate Bill No. 117 was not vetoed and was filed with the Secretary of State on January 5, 2007,” (2) “set forth in both the paper and electronic Journals she keeps that any referendum petitions challenging Amended Substitute Senate Bill No. 117 must be filed with the Secretary of State within 90 days of the filing of Amended Substitute Senate Bill No. 117 on January 5, 2007,” (3) “maintain and preserve Amended Substitute Senate Bill No. 117, as filed by Governor Taft on January 5, 2007, and make accurate records available to the Legislative Service Commission so that it can fulfill its codification duties,” and (4) “fulfill each of the duties and obligations imposed by Chapter 149 of the Revised Code with respect to Amended Substitute Senate Bill No. 117.” Both Harris and Husted had voted for Am.Sub.S.B. No. 117.

The Court denied a motion by Brunner to dismiss the mandamus petition, issued an alternative writ with a briefing schedule, and subsequently heard oral arguments in the case on May 1, 2007.

Writing for the majority in today's decision, Justice Cupp held that under Section 16, Article II of the Ohio Constitution, when the legislature passes a bill and adjourns its session sine die before presenting the bill to the Governor, the ten-day time limit after which the bill becomes law unless vetoed by the governor runs from the date the legislative session was adjourned, not from the date on which the bill was presented to the governor. Based on that analysis, the Court ruled that Governor Strickland's January 8, 2007 veto of Am. Sub. S.B. 117 was not filed within the ten-day time limit, and that Secretary of State Brunner is therefore required to accept and process the bill as filed by Governor Taft on January 5, 2007 as duly enacted legislation.

In his majority opinion, Justice Cupp wrote: “The first part of the third paragraph of Section 16, Article II of the Ohio Constitution expressly provides that ‘[i]f a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it.' Accordingly, when the General Assembly is in session, the ten-day period during which a governor may sign a bill or return it to the General Assembly (i.e., with his veto message), and after which it becomes law without his signature, begins ‘after [the bill is] presented to him.'

“The second part of the provision states that if ‘the General Assembly by adjournment prevents [the bill's] return * * *, it becomes law unless, within ten days after such adjournment, it is filed by [the governor], with his objections in writing, in the office of the secretary of state.' (Emphasis added.) This second part prescribes a different rule to cover the situation in which the bill cannot be returned to the General Assembly because of its adjournment sine die. In that situation, unlike when the assembly is in session, the Constitution does not specify that the ten-day period begins to run from its presentment to the governor, but instead, specifies counting the ten days ‘after such adjournment.' We hold therefore that under Section 16, Article II of the Ohio Constitution, when the General Assembly adjourns sine die, preventing the return of a bill to the General Assembly, the bill ‘becomes law unless, within ten days after such adjournment,' it is filed by the governor with the governor's objections in writing, in the office of the secretary of state.”

In the present case, Justice Cupp wrote, the ten-day period began to run on December 26, 2006, the day the General Assembly adjourned sine die, and therefore ended, at the latest, on January 6, 2007. He wrote: “Accordingly, when the governor attempted to veto the bill on January 8, 2007, the bill had already become law, and the governor lacked authority under Section 16, Article II, to veto it. Additionally, because Am.Sub.S.B. No. 117 had become law before January 8, 2007, the secretary had then and continues to have a duty to maintain and preserve it. R.C. 111.08. The secretary also has a duty to perform her other statutory responsibilities applicable to duly enacted laws.”

Justice Cupp's opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O'Connor. Justice Terrence O'Donnell concurred in judgment. Justices Stratton, O'Connor and O'Donnell also entered separate concurring opinions (see below). Justices Paul E. Pfeifer and Judith Ann Lanzinger entered separate dissenting opinions.

Justice Pfeifer's dissent asserted his belief that the majority holding “strikes a harmful blow to the separation of powers” by enabling the legislature to “eliminate entirely a governor's veto by waiting until ten days after adjournment to present a passed bill to the governor.” In this case, Justice Pfeifer wrote, “(T)he General Assembly did not present the bill to Governor Taft until 13 days after it had passed. Pursuant to the majority's holding, had the General Assembly adjourned on the day of passage, Am.Sub.H.B. No. 117 would have become law three days before presentment. Had the General Assembly only known then of the hidden constitutional treasure the majority conjures up today, it could have avoided this whole lawsuit. Certainly, today's opinion will be useful to the General Assembly in the future, especially when the governor is from an opposing political party.

Pointing to past state and federal court decisions that he said have consistently tied the start of a governor's ten-day review period to the date a bill is presented for his approval, Justice Pfeifer wrote:

“The majority today allows the General Assembly, through the manipulation of its adjournment, to effectively render a governor's veto power a nullity.... The majority defies common sense, the Ohio Constitution, the jurisprudence of the United States Supreme Court and the supreme courts of other states, and this court's own prior “unmistakably clear” interpretation of the very same constitutional provision that is at issue today. The majority has achieved a new level of judicial activism -- a wholesale rewriting of the Ohio Constitution. And all the General Assembly had to do was ask.”

“Why is the majority deciding this way today? I do not know. In the ultimate display of result-oriented justice, its reasoning shifts. From the day of oral argument, the unfolding of the majority opinion has been the story of a result in search of a justification and an author,” Justice Pfeifer wrote.

Justice Maureen O'Connor entered an opinion concurring in the majority judgment and syllabus and taking exception to language in Justice Pfeifer's dissent that she said amounted to an “improper accusation that the majority has not decided this case of first impression with honesty and integrity.... The dissent states that our holding in this case was reached in a result-driven process that was started on the day the case was argued and that has been fueled by political considerations since then. Nothing could be farther from the truth.” Justice O'Connor asserted that the multiple concurring and dissenting opinions entered by different justices in the case “suggests, quite strongly, that the members of this court are not of one mind—or persuasion.”

“When judges and justices engage in robust discussion in furtherance of the search for consensus, we are rightfully expected by the people who elect us to act with respect and courtesy. In turn, we have often called upon attorneys to practice their profession with civility,” wrote Justice O'Connor. “Although civility is an amorphous concept in legal arenas, at a minimum it suggests proceeding without insult and ad hominem attacks when discussing those who hold an opposite view. Unfortunately, Justice Pfeifer disregards the same civility he once espoused in favor of a dissent filled with sarcastic scurrility.”

In a separate concurring opinion, Justice Stratton wrote that in her view, “under Section 16, Article II, the governor has three options for bills presented by the General Assembly for consideration. The governor may (1) approve the bill by signing it, (2) veto the bill, or (3) refuse to sign or veto the bill. * * *If the governor decides ─ as here ─ to exercise his authority under the third option provided by Section 16, Article II by allowing the bill to become law without his signature and refusing to sign or veto the bill, the governor effectuates that decision by filing the unsigned bill with the secretary of state.”

Moreover, Justice Stratton wrote that in her view, the act of filing a bill with the secretary of state has constitutional significance. With certain exceptions, acts go into effect 90 days after the same have been filed with the secretary of state, regardless of the date of approval by the Governor. The filing date also begins the 90-day period within which electors can submit a referendum petition to challenge laws enacted by the General Assembly under Section 1c, Article II, of the Ohio Constitution. Justice Stratton wrote separately because, in her view, “the stronger and simpler position for invalidating the veto is to hold that when the governor decides to allow a bill to become law without his or her signature and files the bill without written objections with the secretary of state, the governor's constitutional authority over the bill terminates.”

“The predecessor governor decided to let Am.Sub.H.B. No. 117 become law without his signature and performed the only act he was required by the Constitution to do regarding this option by filing the unsigned bill with the secretary of state,” wrote Justice Stratton. “By doing so, he relinquished control over the bill. Until he did so, assuming that the period of time for him to consider the bill had not expired, he could have changed his mind and either signed or vetoed the bill. But, in my view, after he filed the bill with the secretary of state, his authority over the bill ended and neither he nor a successor governor could retrieve the bill and act upon it.” Justice Stratton also indicated that she believed that the Secretary of State Brunner exceeded her legal authority when she complied with Governor Strickland's request to return S.B. 117 to the governor's office, because in taking that action Brunner made “a judicial determination that the governor was entitled to the bill because it had ‘not yet become law.'”

Justice O'Donnell wrote separately, expressing his view that the case is not about the counting or commencement of the ten day period as articulated in the majority and dissenting opinions, but, rather, it is about the authority of the governor to retrieve a bill from the office of the secretary of state after it had been acted upon and the authority of the secretary of state to comply with such a request. He explained that the constitutional role of the governor's office with respect to the bill terminated when Governor Taft filed it with the secretary of state before Governor Strickland took office, citing the court's 1837 decision in Doe v. Dugan's Exrs., 8 Ohio 87, 107: “It is not competent for a public officer to undo what he has once done, and thus correct his errors; when he has executed his duties, his is functus officio, and has lost his power over the subject.”

Justice O'Donnell also expressed the view that, “When Governor Strickland assumed office and thereafter requested that the bill be returned to his office, the secretary of state lacked any authority whatsoever to comply with that request. Because the Ohio Constitution uses the date of the filing with the secretary of state to commence the time for filing a referendum petition and to commence the time for determining the effective date of the legislation, and because no constitutional or statutory authority exists to permit the secretary of state to remit a bill of law to the governor's office, I am of the view that the secretary of state lacks the discretion to exercise such authority.”

In a separate dissent, Justice Judith Ann Lanzinger disputed the majority's interpretation of the constitutional language defining when the ten-day gubernatorial review period begins. She noted that Section 16, Article II gives the governor 10 days after presentment of a bill to veto and return it to the legislature “unless the General Assembly by adjournment prevents its return.” She wrote: “An adjournment cannot ‘prevent [a bill's] return' unless the bill is already presented, meaning it is in the hands of the Governor.” In her view, Justice Lanzinger said, the general rule is that the date of presentment begins the time count and the exception using the date of adjournment occurs only when the adjournment sine die follows the date of presentment. “Under this interpretation, the governor always has ten days in which to fully review legislation that is presented to him and is given extra time if the legislature adjourns sine die during his review period.”

Contacts
Suzanne K. Richards, 614.464.6458, for Ohio General Assembly.

Brian J. Laliberte, 614.728.5470, for Secretary of State Jennifer Brunner.