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Court Clarifies Constitutional Rule That Limits Legislative Bills to ‘Single Subject’

2004-0272. In re Nowak, 2004-Ohio-6777.
On Order from the Bankruptcy Appellate Panel of the United States Sixth Circuit Court of Appeals Certifying a Question of State Law, No. 03-8051. Certified question answered in the affirmative.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and O'Connor, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2004/2004-Ohio-6777.pdf

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(Dec. 22, 2004) In a ruling that invalidated a 1999 amendment to a former state law dealing with mortgage documents, the Supreme Court of Ohio today clarified its interpretation of the provision in the Ohio Constitution that restricts legislative bills to “a single subject.”

The Court held that only a “manifestly gross and fraudulent” violation of the one-subject rule (Section 15(D), Article II of the state constitution) will cause a legislative enactment to be invalidated. It added, however, that since the rule is capable of invalidating some bills under this standard, prior Supreme Court decisions holding that the one-subject rule is merely “directory” in nature are incorrect.

In a 5-2 decision authored by Justice Alice Robie Resnick, the Court agreed with two federal court rulings that the inclusion of a 24-line amendment to a state mortgage recording statute (R.C. 5301.234) in a 172-page bill (Am.Sub.H.B.163) that addressed widely divergent topics and included no other mortgage-related provisions was a blatant violation of the single-subject rule, and therefore rendered the mortgage recording provision unconstitutional. (The provision in question was in effect from June 30, 1999 to Feb. 1, 2002, when it was replaced by a new statute that is unaffected by today's ruling.)

In an extensive opinion that traced the single-subject rule to its origin at the state's Second Constitutional Convention in 1851, Justice Resnick wrote that the rule's original purpose was to deter the then-frequent practice of legislative “logrolling.” She explained that logrolling involved collusion among legislators seeking state subsidies for privately owned canals, turnpikes, railroads and other speculative projects. While such projects had little chance of gaining majority support on their individual merits, Justice Resnick said many won passage through backroom deals in which several unrelated proposals were cobbled together into a single bill, which their various minority backers all agreed to support, yielding a majority.

In the first Supreme Court case testing the single-subject rule, Pim v. Nicholson (1856), the Court held it to be “directory only,” finding that it was intended to guide the House and Senate in conforming their own procedural rules with the state constitution, but was not intended to be a mandatory grounds to overrule legislative enactments. Justice Resnick noted, however that the court in Pim included a caveat that it would not address the prospect of being forced to invalidate a law for “a manifestly gross and fraudulent violation” of the one-subject rule because “(i)t is to be presumed that no such case will ever occur.”

More than 100 years later, Justice Resnick noted, the Supreme Court cited the Pim caveat when it held in State ex rel. Dix v. Celeste (1984) that, if a challenged piece of legislation were found to involve a “manifestly gross and fraudulent violation” of the one-subject rule, a court could impose the remedy suggested but not invoked in Pim —the actual invalidation of the offending legislative provision.

Justice Resnick agreed that the Dix decision struck a proper balance by recognizing “the necessity of giving the General Assembly great latitude in enacting comprehensive legislation …” while providing “a sufficient guard against logrolling and stealth and fraud in legislation by stating that a manifestly gross and fraudulent violation of the one-subject provision will render an enactment invalid.” She wrote, however, that the Dix court went astray in attempting to reconcile its holding affirming the possible invalidation of a bill with Pim 's finding that the one-subject rule is merely a “directory” guideline.

Citing cases that date back to the 1870s, Justice Resnick wrote that “(a) directory provision, by definition, involves no invalidating consequence for its disregard. Indeed, the inability of a directory provision to effectuate an invalidating consequence is its sole defining characteristic. … Once this is understood, it becomes evident that the holding and caveat in Pim cannot logically coexist, since each operates to the exclusion of the other. If the one-subject rule is directory … it cannot be applied to (invalidate) offending legislation, no matter how blatant or egregious the violation. On the other hand, if a blatant violation of the one-subject rule can potentially cause an enactment to be invalidated … the rule cannot be considered directory. The proposition that the one-subject rule is both directory and potentially capable of being applied by the court to invalidate a law is essentially an oxymoron.”

Since Dix , she wrote, the Court has “struggled to define its role in the enforcement of the one-subject rule” largely because it has tried to regard the rule as a “directory” measure even while voting to invalidate legislative provisions when it found blatant violations of the rule in State ex rel. Hinkle v. Franklin County Board of Elections (1991), Simmons-Harris v. Goff (1999) and within the past month in State ex rel. OCSEA v. SERB.

Declaring that “(i)t is high time that we clarified this matter,” Justice Resnick wrote in today's opinion: “We hold that a manifestly gross and fraudulent violation of the one-subject provision contained in Section 15(D), Article II of the Ohio Constitution will cause an enactment to be invalidated. Since the one-subject provision is capable of invalidating an enactment, it cannot be considered merely directory in nature.”

In applying this standard to the 1999 mortgage recording provision inserted in Am. Sub. H.B. 163, Justice Resnick found that the bill contained no title descriptive of its subject matter; that its preamble indicated a general purpose (among others) “to make appropriations for programs related to transportation and public safety” for the 2000-2001 biennium; and that the bill contained hundreds of disparate provisions relating to subjects from disposition of driver license and vehicle registration fees to the compensation of county auditors to liquor control enforcement and food stamp trafficking. “Section 5301.234 lacks a common purpose or relationship with the balance of Bill Number 163,” she wrote. “There is no discernible reason for combining the provisions into one bill … Section 5301.234 presents a classic violation of the one-subject rule, and must be held constitutionally infirm.”

Justice Resnick declined to apply a two-part test suggested by the petitioner in the case that would require courts, after finding a gross violation of the single-subject rule, to also find evidence of fraud or logrolling before invalidating an enactment. “Petitioner's proposed test invites the evil it claims to avoid,” she wrote. “It purports to be steeped in concerns of legislative autonomy and judicial noninterference, yet directs us to look beyond the four corners of a bill and inquire into the doings of legislators. … (T)his test requires that we perform the inherently legislative function of gauging the extent to which particular proposals are likely to generate political controversy or invoke political opposition, which is a kind of entanglement with the legislative process that far exceeds any legitimate judicial function.”

Justice Resnick's opinion was joined by Chief Justice Thomas J. Moyer and Justices Francis E. Sweeney Sr., Paul E. Pfeifer and Maureen O'Connor. Justice Evelyn Lundberg Stratton entered a dissenting opinion that was joined by Justice Terrence O'Donnell.

Justice Stratton noted that delegates at the 1851 constitutional convention debated and defeated a proposed amendment that would have made the single-subject rule mandatory rather than directory. She quoted discussion from the convention proceedings in which opponents of a mandatory rule argued that, to accomplish legitimate and related purposes, major pieces of legislation often had to enact or amend dozens of different statutes; and that a mandatory one-subject rule would undermine the legislative process by allowing courts to later second-guess and invalidate enactments simply for including diverse provisions in a single bill.

“Now a majority of this court has voted to amend that which the delegates defeated … I do not agree,” wrote Justice Stratton. “The rule was designed to prevent logrolling, not to guarantee commonality of subjects within a bill. … Although today's decision pays lip service to the ‘manifestly gross and fraudulent' standard set forth in Pim , this court continues its slide down a slippery slope, using the one-subject rule to invalidate legislation with little consistency or reason.”

David A. Freeburg, 216.622.0850, for Bankruptcy Petitioner PCFS Financial.

Michael Moran, 330.929.0507, for Bankruptcy respondent Lydia Spragin.