State ex rel. Ohio Gen. Assembly v. Brunner

• Decision Date: 01 August 2007
• Docket Number: No. 2007-0209.,2007-0209.
• Parties: The STATE ex rel. OHIO GENERAL ASSEMBLY et al. v. BRUNNER, Secy. of State.
• Court: Ohio Supreme Court

872 N.E.2d 912

114 Ohio St.3d 386

2007-Ohio-3780

The STATE ex rel. OHIO GENERAL ASSEMBLY et al. v. BRUNNER, Secy. of State.

No. 2007-0209.

Supreme Court of Ohio.

Submitted May 1, 2007.

Decided August 1, 2007.

Vorys, Sater, Seymour & Pease, L.L.P., Suzanne K. Richards, C. William O'Neill, and Richard D. Schuster, Columbus, for relators.

Marc Dann, Attorney General, and Brian J. Laliberte, Michael W. Deemer, Frank M. Strigari, Pearl Chin, and Christopher R. Geidner, Assistant Attorneys General, for respondent.

Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, and Maria J. Armstrong, Columbus, urging granting of the writ for amici curiae Ohio Alliance for Civil Justice, Ohio Manufacturers' Association, Ohio Chamber of Commerce, National Federation of Independent Business/Ohio, Ohio Council of Retail Merchants, Ohio Business Roundtable, Ohio Chemistry Technology Council, and Ohio Automobile Dealers Association.

Marc Dann, Attorney General, and Kent Markus, Special Assistant Attorney General, urging denial of the writ for amicus curiae Governor Ted Strickland.

Daniel T. Kobil, Professor of Law, Capital University Law School, urging denial of the writ for amici curiae eighteen Ohio professors of constitutional law.

Benson A. Wolman, Susan B. Gellman, Columbus, and Rachel K. Robinson, urging denial of the writ for amici curiae Equal Justice Foundation, Coalition on Homelessness and Housing in Ohio, AARP, National Association of Consumer Advocates, Ohio State Legal Services Association, Legal Aid Society of Cleveland, Legal Aid Society of Columbus, Miami Valley Fair Housing Center, Toledo Fair Housing Center, Northeast Ohio Coalition for the Homeless, Cleveland Tenants Organization, Advocates for Basic Legal Equality, Legal Aid of Western Ohio, and the Cuyahoga County Foreclosure Prevention Program.

Willis & Willis Co., L.P.A., and Todd L. Willis; McDowall Co., L.P.A., and Laura K. McDowall, Akron, urging denial of the writ for amicus curiae National Association of Consumer Advocates.

CUPP, J.

{¶ 1} This is an original action filed by relators, the Ohio General Assembly, Ohio Senate President Bill Harris, and Ohio House of Representatives Speaker Jon Husted, to compel respondent, Ohio Secretary of State Jennifer Brunner, to treat 2006 Am.Sub.S.B. No. 117 as a duly enacted law and to fulfill all of her duties as set forth in R.C. Chapter 149 regarding the law.

{¶ 2} Former Governor Bob Taft had filed the unsigned bill with former Secretary of State J. Kenneth Blackwell on the last business day of their terms of office, but Secretary of State Brunner reconveyed the bill to Governor Ted Strickland upon his request on the first day of their terms of office. The governor then returned the bill on the same day to the secretary of state with his veto.

{¶ 3} This case raises an issue of first impression and has been ably presented by the parties and the various amici curiae. In this case, we decide only whether Am. Sub.S.B. No. 117 had become a law before January 8, 2007, when Governor Strickland and Secretary Brunner took office, and thus whether the governor's attempted veto of Am.Sub.S.B. No. 117 on that date was effective.

I

{¶ 4} The Ohio Senate passed Am.Sub.S.B. No. 117 on October 26, 2005, during the 126th General Assembly, and the clerk of the Ohio Senate signed that engrossed bill.¹ On December 14, 2006 the Ohio House of Representatives passed Am.Sub.S.B. No. 117, and the clerk of the Ohio House of Representatives signed that engrossed bill. On that same date, the Ohio Senate concurred in Am.Sub.S.B. No. 117, and the clerk of the Ohio Senate signed that engrossed bill. The bill was enrolled² and signed by the Senate president and the Speaker of the House.

{¶ 5} On December 21, 2006, the Ohio House of Representatives adjourned for the legislative session, or adjourned "sine die."³ On Tuesday, December 26, 2006, the Ohio Senate—and thus the General Assembly—adjourned sine die.

{¶ 6} On Wednesday, December 27, 2006, 13 days after the General Assembly passed Am.Sub.S.B. No. 117, the governor was presented with Am.Sub.S.B. No. 117. The clerk of the Ohio Senate conferred with members of the governor's staff to coordinate an appropriate date for the presentation of the bill, along with other bills, and it was determined that December 27 would be the date of presentment.

{¶ 7} On the last business day of Governor Taft's term of office, which was Friday, January 5, 2007, the governor filed Am.Sub.S.B. No. 117 with the office of the Ohio secretary of state. As noted in the Governor's Office Bill Record, the secretary of state received and signed the bill.

{¶ 8} The Governor's Office Bill Record is a paper journal that is the property of the governor, but is located in the secretary of state's office as a matter of convenience because of its size and weight. According to R.C. 107.10(A), the record is a "register of every bill passed by the general assembly that has been presented to the governor, in which is entered the number of the bill, the date the bill was presented to the governor, and the action taken on it by the governor and the date of the action." Most of the information contained in the register is filled in by the governor's staff, and that information is not altered by the secretary of state's staff. For administrative purposes, the secretary of state also maintains electronic records concerning legislation filed in the office, and the secretary makes these records readily available to the public.

{¶ 9} The governor neither vetoed nor signed the bill. Instead, the governor issued a January 5 press release specifying that he had "decided to allow Amended Substitute Senate Bill 117 [to] become law without [his] signature."

{¶ 10} On Monday, January 8, 2007, the first day of the terms of office of Governor Ted Strickland and Secretary of State Jennifer Brunner, the governor requested that the secretary "return" Am.Sub.S.B. No. 117 to him. The governor specified that he was requesting the immediate return of the bill to him for further review because "the 10-day presentment period for that bill [had] not yet concluded." On that same date, the secretary of state complied with the governor's request. Still later on January 8, 2007, the governor reconveyed Am.Sub.S.B. No. 117 to the secretary of state along with his message that he was vetoing the bill.

{¶ 11} The Governor's Office Bill Record notes that Am.Sub.S.B. No. 117 was presented to the governor on December 27, that the governor acted upon it on January 4, and that the bill was delivered to, and filed with, the secretary of state on January 5, 2007. The bill record also shows that the bill was returned to the governor on January 8 and that the governor delivered it back to the secretary on that same date along with his veto of the bill. The secretary's electronic record, however, merely notes that Am.Sub.S.B. No. 117 was filed on January 8, 2007, and that it was vetoed.

II

{¶ 12} On February 2, 2007, about three and one-half weeks after the veto, relators, the Ohio General Assembly, Ohio Senate President Bill Harris, and Ohio House of Representatives Speaker Jon Husted, filed this action for a writ of mandamus to compel respondent, Secretary of State Jennifer 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.

{¶ 13} After the secretary filed a motion to dismiss, we granted an alternative writ, issued an expedited schedule for briefing and the submission of evidence, and set the case for oral argument. State ex rel. Ohio Gen. Assembly v. Brunner, 113 Ohio St.3d 1421, 2007-Ohio-1280, 863 N.E.2d 175. In addition, various amici curiae submitted briefs.

{¶ 14} This cause is now before the court for a consideration of the merits.

III

{¶ 15} The secretary of state asserts that this case should be dismissed because relators lack standing. "A preliminary inquiry in all legal claims is the issue of standing." Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 22. "It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect." Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371.

{¶ 16} Here the relators are the Ohio General Assembly, the Senate president, and the Speaker of the House. In their complaint, the Senate president and the Speaker of the House allege standing in their official capacities as presiding officers of the separate bodies of the General Assembly, as state legislators, as members of the Legislative Service Commission, on behalf of the Ohio General Assembly, and as citizens of the state of Ohio.

{¶ 17} We conclude that the Senate president and the Speaker of the House, as legislators who voted with the majority for passage of the bill, have standing to bring this action. It has been recognized that legislators at times have standing to challenge executive decisions. For example, in Coleman...