State ex rel. Governor v. Taft

• Decision Date: 21 October 1994
• Docket Number: No. 94-1553,94-1553
• Citation: 71 Ohio St.3d 1,640 N.E.2d 1136
• Parties: The STATE EX REL. GOVERNOR v. TAFT, Secy. of State.
• Court: Ohio Supreme Court

Page 1

71 Ohio St.3d 1

640 N.E.2d 1136

The STATE EX REL. GOVERNOR v. TAFT, Secy. of State.

No. 94-1553.

Supreme Court of Ohio.

Submitted Aug. 31, 1994.

Decided Oct. 21, 1994.

Ray Todaro & Alton Co., L.P.A., and Frank A. Ray; Clark, Perdue, Roberts & Scott Co., L.P.A., and Edward L. Clark, Columbus, for relator.

Lee I. Fisher, Atty. Gen., Marianne Neal and Andrew I. Sutter, Asst. Attys. Gen., for respondent.

Crabbe, Brown, Jones, Potts & Schmidt, Larry H. James, Michael R. Henry and Kristen H. Smith, Columbus, urging dismissal for amicus curiae, Truck Ins. Exchange.

Vorys, Sater, Seymour & Pease, William D. Kloss, Robert N. Webner and Laurie A. Briggs, Columbus, urging dismissal for amicus curiae, Ohio Ins. Institute.

PER CURIAM.

For the following reasons, we grant respondent's motion for summary judgment.

Relator seeks alternative orders: first, a declaration that Am.Sub. S.B. No. 20 is void, and a writ of prohibition and mandamus "ordering" respondent to refuse acceptance for filing of Am.S.B. No. 20; alternatively, a declaration that the Act is void, "a writ of mandamus to Respondent ordering him to strike the language of [Am.Sub.] S.B. 20 from the laws of the State of Ohio," and a "writ of prohibition ordering Respondent not to publish and distribute the language of [Am.Sub.] S.B. 20 as the law of Ohio." Thus, under the first alternative, he seeks a declaratory judgment combined with an order that enjoins action, and under the second alternative, he seeks a declaratory judgment and an order compelling action. An affidavit submitted with respondent's motion for dismissal or summary judgment demonstrates that the first alternative is moot because the action sought to be enjoined--the filing of Am.Sub.S.B. No. 20--has already taken place. However, a moot cause may be tried where the issue or controversy is "capable of repetition yet evading review." In re Protest Filed by Citizens for the Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 103, 551 N.E.2d 150, 151. Therefore, mootness is not determinative of the causes.

Respondent also raises the issue of lack of jurisdiction in his memorandum in support of his motion, but without full exposition. Nevertheless, the issue having been raised, we examine it on respondent's alternative motion for summary judgment.

First, under both alternatives for relief, relator asks for a declaration that Am.Sub.S.B. No. 20 is void. By themselves, these are requests for declaratory judgments, which this court has declared it has no jurisdiction to entertain, State ex rel. Ohio Mechanical Contracting Industry, Inc. v. Cleveland (1992), 65 Ohio St.3d 1210, 605 N.E.2d 386, except in regard to apportionment matters, where its jurisdiction is exclusive and original. Voinovich v. Ferguson (1992), 62 Ohio St.3d 1224, 584 N.E.2d 737, and (1992), 63 Ohio St.3d 198, 586 N.E.2d 1020. This court's jurisdiction in mandamus and prohibition is not exclusive. Section 3, Article IV, Ohio Constitution.

Second, in State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, we held:

"Where a petition filed in the Supreme Court or in the Court of Appeals is in the form of a proceeding in mandamus but the substance of the allegations makes it manifest that the real object of the relator is for an injunction, * * * the action must be dismissed for want of jurisdiction." Id. at paragraph four of the syllabus.

"[W]here a petition is labelled an 'action in mandamus' but its allegations, in effect, seek an injunctive remedy to restrain and enjoin the respondents rather than to compel respondents to perform a clear legal duty, such a petition does not state a cause of action in mandamus but states a cause of action in injunction, and since this court does not have original jurisdiction in injunction, such a petition must be dismissed on the ground that it does not state a cause of action in mandamus." (Emphasis sic.) Id. at 150, 40 O.O.2d at 147, 228 N.E.2d at 640.

In the instant case, relator's first alternative request for relief seeks to restrain or enjoin respondent from filing Am.Sub.S.B. No. 20. Therefore, we find that its true objects are declaratory judgment and injunction and that we have no jurisdiction as to the first request for relief.

As to the second alternative request for relief, Section 16, Article II, Ohio Constitution states in part:

"If the governor approves an act, he shall sign it, it becomes law and he shall file it with a secretary of state."

In Maloney v. Rhodes (1976), 45 Ohio St.2d 319, 74 O.O.2d 499, 345 N.E.2d 407, we held that under Section 16, Article II a bill becomes law upon the signature of the Governor and that the Secretary of State is not vested with any jurisdiction to determine the constitutionality of any law. Rather, he only has the ministerial duty to file the Act. Id., paragraphs one and two of the syllabus. Moreover, we find no duty in the Constitution or laws requiring the Secretary of State not to file a bill, to strike an unconstitutional bill from the files, or to inhibit the publishing or distribution of such a bill. These are clearly duties relator has invented as a peg on which to hang his real request, a declaratory judgment on the constitutionality of Am.Sub.S.B. No. 20.

A court cannot create a duty in mandamus:

"A court in a mandamus proceeding cannot create the legal duty the relator would enforce through it; creation of the duty is the distinct function of the legislative branch of government." State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 3, 591 N.E.2d 1186, 1188-1189; State ex rel. Stanley v. Cook (1946), 146 Ohio St. 348, 32 O.O. 419, 66 N.E.2d 207, paragraph eight of the syllabus; Davis v. State ex rel. Pecsok (1936), 130 Ohio St. 411, 5 O.O. 20, 200 N.E. 181, paragraph one of the syllabus.

Accordingly, because respondent has no clear legal duty not to file unconstitutional bills, to strike such bills from his files, or not to publish such bills and because respond...