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Court Sets Amended Effective Date for Disputed Bill To Allow For Possible Referendum Effort

2007-0209. State ex rel. Ohio Gen. Assembly v. Brunner, 2007-Ohio- ____.
In Mandamus. Reported at ___ Ohio St.3d ___, 2007-Ohio-3780, ___ N.E.2d ___. On motion for reconsideration. Reconsideration granted to the following extent: The opinion issued on August 1, 2007 is modified to clarify the referendum period for 2006 Am.Sub.S.B. No. 117. See opinion dated this day, ___ Ohio St.3d ___, 2007-Ohio-____, ___ N.E.2d ___.
Moyer, C.J., Lundberg Stratton and O'Connor, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer, J., concurs in part and dissents in part.
O'Donnell and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2007/2007-Ohio-4460.pdf

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(August 31, 2007) Citing the “unique circumstances” surrounding a bill that was filed with the secretary of state by former Governor Bob Taft on his last day in office but subsequently vetoed by Governor Ted Strickland on the first day of his term, the Supreme Court of Ohio today amended its decision in a case decided earlier this month by setting Aug. 1, 2007, as the date Am.Sub.S.B. No. 117 became law for the purposes of a possible referendum effort. Today's per curiam opinion allows citizens of the state who may wish to seek the bill's repeal through a ballot referendum to file petitions with the secretary of state within 90 days after Aug. 1.

In its earlier decision issued Aug. 1, the Court granted a writ of mandamus sought by legislative leaders declaring that Governor Strickland's veto of S.B. 117 was invalid and ordering Secretary of State Jennifer Brunner to accept and process the bill as duly enacted legislation. The 5-2 majority opinion held that, under Section 16, Article II of the Ohio Constitution, Strickland had no authority to veto the bill on Jan. 8, 2007, because it became law on Jan. 5, 2007, the 10th day after final adjournment of the 2006 General Assembly session.

Secretary of State Brunner subsequently filed a motion asking the Court to reconsider or clarify its ruling with regard to the filing date of the bill and the corresponding right of citizens to seek its repeal by filing petitions for a ballot referendum within 90 days after the official filing date. In her pleadings, Brunner pointed out that if the Court's Aug. 1 decision required her to administer Am.Sub.S.B. No. 117 as having been officially filed on Jan. 5, 2007, then the 90-day period for filing referendum petitions would have expired on April 5, 2007, leaving Ohio citizens with no opportunity to exercise their constitutionally guaranteed right of referendum.

In today's decision, the Court acknowledged that in its Aug. 1 ruling “we deemed the law to be effective 90 days after it was originally filed in the secretary of state's office by Governor Bob Taft, i.e., April 5, 2007.” Upon reconsideration, though, the Court found that this ruling unintentionally infringed upon the citizens' constitutional right to referendum, which it stated is “of paramount importance.” Quoting the United States Supreme Court, the Court stated that “‘The referendum … is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies. The practice is designed to “give citizens a voice on questions of public policy.”'” Given these importance of this constitutional right and the unprecedented circumstances surrounding the case, the Court held that setting an amended filing date for the bill of Aug. 1, 2007 for purposes of a possible referendum was “the only satisfactory solution.”

The Court wrote: “ Brunner was a unique case, both factually and legally. Governor Taft's filing of Am.Sub.S.B. No. 117 in Secretary of State Blackwell's office would normally start the time for referendum. However, his successor, Governor Strickland, purported to undo this action by requesting that the bill be returned and subsequently vetoing it. When we invalidated Governor Strickland's action, we proceeded as if the bill had never been vetoed and, pursuant to Section 1c, Article II, made the law effective 90 days from the day Governor Taft filed it in the secretary of state's office.”

“However, this result is problematic under the Constitution, given the unique facts of this case. ... A citizen opposed to Am.Sub.S.B. No. 117 could not know whether the law was valid or invalid. The conduct of one governor made the law valid, then the conduct of a successor governor made the law invalid. Never in Ohio's history has that circumstance been created. It could be reasonably argued that following Governor Strickland's veto, there was no law to challenge during this time period and thus no need to pursue referendum. Objectors had reason to act only after we announced our opinion; by then, it was too late to begin a successful referendum petition effort. ... In pursuing the proper resolution of the constitutional issue before us, we unintentionally deprived the citizens of the right to referendum that they would have enjoyed were it not for the unavoidable delays associated with judicial review. This result is unacceptable.”

In setting a delayed filing date for referendum purposes as the appropriate remedy, the Court wrote: “In view of the unique circumstances of this case, the only satisfactory solution is to move the beginning of the 90-day referendum period to the date of the (original) decision in Brunner. Given Secretary Brunner's timely motion for reconsideration or stay, a significant amount of the 90-day referendum period remains. Interested citizens now have ample opportunity to circulate petitions and seek a vote on the validity of the law in accordance with Section 1c, Article II of the Ohio Constitution. While this result is an unusual one, it is necessary to safeguard the rights reserved to the citizens of this state under the Ohio Constitution.

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O'Connor.

Justice Judith Ann Lanzinger concurred in judgment only, stating that although she dissented from the majority holding in the Aug. 1 Brunner decision, she concurs with today's holding that the effective filing date of the Am.Sub.S.B. No. 117 should be amended to allow citizens to exercise their right of referendum.

Justice Paul E. Pfeifer concurred with the majority's holding that the effective date of Am.Sub.S.B. No. 117 should be moved back to allow citizens to exercise their right of referendum., but dissented from the majority's selection of Aug. 1, 2007, as the appropriate starting date of the 90-day referendum period.

“The majority's decision today is not an amendment or clarification of its August 1, 2007 decision; the majority has completely changed the holding on an issue settled in the first opinion,” wrote Justice Pfeifer. “There is no reason that the 90-day time period for exercising the right of referendum should start to run from the date of that abrogated holding. Today is the day that Ohioans have learned that they may assert their right to referendum as to Am.Sub.S.B. No. 117. On August 1, they were told they could not. The 90-day clock should start running now.”

Justice Terrence O'Donnell dissented, stating that in his view today's decision is contrary to prior decisions of the Court barring “advisory” opinions, because Secretary of State Brunner's motion for reconsideration/clarification of the Court's Aug. 1 decision did not arise from her receipt of an actual referendum petition, but rather posed a legal question based on the potential filing of such a petition.

Justice O'Donnell also pointed out that the Ohio Constitution provides only one mechanism for the repeal of legislation by citizen referendum, and that remedy requires the filing of a valid petition within 90 days after the effective date of the bill.

Since the filing date established in the Court's Aug. 1 Brunner decision was Jan. 5, 2007, Justice O'Donnell wrote: “The secretary of state did not accept any referendum petitions within 90 days of January 5, 2007, and the Ohio Constitution sets forth no other means by which to stay the effective date of that legislation. Therefore, in conformity with Section 1c, Article II of the Ohio Constitution, it is my view that Am.Sub.S.B. No. 117 is now effective law.”

Justice Robert R. Cupp also entered a dissent, joined by Justice O'Donnell, stating his belief that, while it represents a laudable effort to preserve the opportunity for a referendum on Am.Sub.S.B. No. 117, today's majority ruling creates a remedy that “has no authorization in the text of the constitution, and, in fact, contradicts it.” He pointed out that alternatives to referendum are available to allow citizens who disagree with a legislative enactment to seek its repeal, including the specific constitutional right of initiative, which allows citizens to petition the legislature for specific changes in the law and to force a statewide vote if the legislature fails to respond satisfactorily.

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

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