Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction v. Donald Lee Maurer Et Al., (donald Lee Maurer, Lee Seiber, Rosalie Grant, Elizabeth Green, Saram Bellinger and Willie Jester)

• Decision Date: 08 April 1993
• Docket Number: 92AP-674,93-LW-1636
• Parties: Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al., Plaintiffs-Appellees and George A. Voinovich, Governor, Intervenor-Plaintiff-Appellee v. Donald Lee Maurer et al., (Donald Lee Maurer, Lee Seiber, Rosalie Grant, Elizabeth Green, Saram Bellinger and Willie Jester), Defendants-Appellants
• Court: Ohio Court of Appeals

Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al Plaintiffs-Appellees and George A. Voinovich, Governor Intervenor-Plaintiff-Appellee v. Donald Lee Maurer et al., (Donald Lee Maurer, Lee Seiber, Rosalie Grant, Elizabeth Green, Saram Bellinger and Willie Jester), Defendants-Appellants

No. 92AP-674.

93-LW-1636 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

April 8, 1993

Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al., Plaintiffs-Appellees

and

George V. Voinovich, Governor Intervenor-Plaintiff-Appellee

v.

Donald Lee Maurer et al., (Freddie Moore and John Salim), Defendants-Appellants

No. 92AP-675.

Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al., Plaintiffs-Appellees

and

George V. Voinovich, Governor, Intervenor-Plaintiff-Appellee

v.

Donald Lee Maurer et al., (Leonard Jenkins), Defendant-Appellant

No. 92AP-677.

Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al., Plaintiffs-Appellees

and

George V. Voinovich, Governor, Intervenor-Plaintiff-Appellee,

v.

Donald Lee Maurer et al., (Debra Brown), Defendant-Appellant

No. 92AP-678.

Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al., Plaintiffs-Appellees

and

George V. Voinovich, Governor, Intervenor-Plaintiff-Appellee

v.

Donald Lee Maurer et al., (Ralph DeLeo), Defendant-Appellant

No. 92AP-680.

Reginald A. Wilkinson, Director, Ohio Department of Rehabilitation and Correction et al., Plaintiffs-Appellees

and

George V. Voinovich, Governor, Intervenor-Plaintiff-Appellee

v.

Donald Lee Maurer et al., Defendants-Appellees, (Willie Lee Jester), Defendant-Appellant

No. 92AP-1297.

APPEALS from the Franklin County Court of Common Pleas.

Lee Fisher, Attorney General, John J. Gideon, Jack W. Decker and Rita S. Eppler, for plaintiffs-appellees.

Randall M. Dana, Ohio Public Defender, and S. Adele Shank; Squire, Sanders & Dempsey, and David J. Young, for 4 appellants Donald Lee Maurer, Lee Seiber, Rosalie Grant, Elizabeth Green and Saram Beilinger.

Sowash, Carson & Shostak, and Herman A. Carson; Richard M. Kerger and Marshall Melhorn, for appellant Donald Lee Maurer.

Gregory W. Meyers, for appellant Lee Seiber.

Timothy A. Smith and D. Shannon Smith, for appellant Elizabeth Green.

Shaw, Pittman, Potts & Trowbridge, Thomas C. Hill, Alvin Dunn, Joseph C. Figini and Christopher G. Janney; Steven Lee Smith, for appellant Willie Lee Jester.

Richard B. Igo, for appellants Freddie Moore and John Salim.

Christopher P. Thorman, Melanie S. Corcoran and James W. Brown, III, for appellant Leonard Jenkins.

Ken Murray; K. Ronald Bailey & Associates Co., L.P.A., and K. Ronald Bailey, for appellant Debra Brown.

Dennis Pusateri and Barry W. Wilford, for appellant Ralph DeLeo.

Melvyn R. Durchslag, Margery B. Koosed, Richard L. Aynes, J. Dean Carro, Jonathan Entin, Daniel T. Kobil, Donald E. Lively, Wilson R. Huhn, Edward A. Mearns, Elizabeth A. Reilly, William D. Rich, Richard B. Saphire and Steven H. Steinglass, Professors of Law, for amicus curiae Law Professors.

Daniel T. Kobil; Paul Moke; Moots, Cope & Stanton, and Benson A. Wolman; Kevin Francis O'Neill; David Goldberger, for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

Paul L. Cox and Walter Florence, for amicus curiae Fraternal Order of Police of Ohio, Inc.

Dennis Watkins, Prosecuting Attorney, Patrick F. McCarthy, for amicus curiae Ohio Prosecuting Attorneys Association.

OPINION

PER CURIAM.

On January 10, 1991, former Governor Richard Celeste commuted the sentence of death imposed on Donald Lee Maurer, Lee Seiber, Elizabeth Green, Willie Jester, Leonard Jenkins and Debra Brown to life imprisonment without parole eligibility commuted the death sentence imposed on Rosalie Grant to life imprisonment with no restriction as to further parole eligibility; commuted the sentences of Saram Bellinger and Ralph DeLeo (who is presently serving another sentence in the federal penitentiary in Terre Haute, Indiana) to time served; and granted John Salim a full pardon. On January 11, 1991, former Governor Celeste granted appellant, freddie Moore, a full pardon.^[1]

On January 29, 1991, George Wilson,^[2] Director of the Department of Rehabilitation and Correction, and John Shoemaker, Chief of the Ohio Adult Parole Authority, filed an action in declaratory judgment in the franklin County Court of Common Pleas alleging the governor's actions were in contravention of Section 11, Article III, Ohio Constitution R.C. Chapter 2967, and seeking a declaration that the commutations or pardons granted were null and void. Governor George Voinovich was granted leave to intervene on the basis that a decision in this case would have a bearing on his exercise of the governor's clemency power.

After a hearing, the trial court concluded that the term "pardon," as used in Section 11, Article III, Ohio Constitution, included and was to be used interchangeably with reprieve and commutation; that the governor's authority flowed from the legislature; and, therefore, that compliance with R.C. Chapter 2967 was necessary to vest the governor with the power to commute a sentence or grant a pardon.

Appellants have timely appealed and set forth numerous assignments of error, many of which were outside the scope of the declaratory judgment issued by the trial court.^[3] While recognizing the arguments raised by Salim pertain only to the governor's pardoning power; on January 8, 1993, this court sua sponte limited the appeal to one issue and set forth the following assignment of error to be addressed by the parties:

"Whether the trial court erred when it construed Section 11, Article III of the Ohio Constitution to allow legislative regulation of the governor s power to commute, conferred by such section."

This issue is raised by the first and second assignments of error in the brief on behalf of appellants Maurer, Jester, Seiber, Grant, Green and Bellinger^[4] in case No. 92AP-674; by the eleventh assignment of error in the brief on behalf of appellant DeLeo in case No. 92AP-680; in the first assignment of error in the brief on behalf of appellant Jenkins in case No. 92AP-677; in the third assignment of error in the brief-on behalf of appellants Salim and Moore in case No. 92AP-675; and the sixth assignment of error in the brief on behalf of appellant Debra Brown in case No. 92AP-678. This determinative issue involves the construction, meaning and intent of Section 11, Article III, Ohio Constitution, which provides that:

"He [the Governor] shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law. Upon conviction for treason, he may suspend the execution of the sentence, and report the case to the general assembly, at its next meeting, when the general assembly shall either pardon, commute the sentence, direct its execution, or grant a further reprieve. He shall communicate to the general assembly, at every regular session, each case of reprieve, commutation, or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with his reasons therefor."

In considering the issue in this case, it is not this court's function to inquire into the wisdom or merit of the former governor's actions. Rather, it is this courts function to determine the constitutional authority of the governor to exercise his power to grant' reprieves, commutations and pardons, and to determine whether the court of common pleas correctly construed that authority.

The gist of appellees' argument is that the word "pardon" is a generic term and the word "commutation" is only a subset of that term, so that when the generic term "pardon" is used, it necessarily includes "commutation." Therefore, appellees argue, when the constitution appears to require an application to be made before the governor may act to grant a pardon, the same requirement also applies to commutation. Appellees' analogy would be to a phrase "people, men, women and children" followed by a specific reference only to "people." Thus, people would be a class term including men, women and children. There might be some merit to the argument if the same were true of the word "pardon" as it relates to the word "commutation." However, the generic word is "clemency" not " pardon."

The parties support their respective arguments as to the meaning and interpretation of Section 11, Article III, Ohio Constitution, by construing the language of the constitution, referencing to the debates of the 1850-1851 Constitutional Convention and citing cases from other jurisdictions.

SECTION 11, ARTICLE III, OHIO CONSTITUTION

Although appellees cite several cases indicating that the grant of the power to pardon may include the power to grant commutations, the two terms describe different concepts which, by their very definition, are distinct.

In State ex rel. Gordon v. Zangerle (1940), 136 Ohio St. 371, the Supreme Court had occasion to compare the power of the governor to grant pardons with the power of a court to grant probation. The Supreme Court stated, at 376:

"A pardon may be absolute or conditional, full or partial; and a conditional pardon may be granted upon conditions precedent or subsequent.

"A full pardon purges away all guilt and leaves the recipient from a legal standpoint, in the same condition as if the crime had never been committed ***; a partial pardon releases

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