State ex rel. Letohiovote.Org v. Brunner, 2009-1310.

Citation2009 Ohio 4900,123 Ohio St.3d 322,916 N.E.2d 462
Decision Date21 September 2009
Docket NumberNo. 2009-1310.,2009-1310.
PartiesThe STATE ex rel. LETOHIOVOTE.ORG et al. v. BRUNNER, Secy. of State.
CourtUnited States State Supreme Court of Ohio
916 N.E.2d 462
123 Ohio St.3d 322
The STATE ex rel. LETOHIOVOTE.ORG et al.
BRUNNER, Secy. of State.
No. 2009-1310.
Supreme Court of Ohio.
Submitted September 2, 2009.
Decided September 21, 2009.

[916 N.E.2d 465]

Langdon Law, L.L.C., David R. Langdon, Thomas W. Kidd Jr., and Bradley M. Peppo; Jones Day, Michael A. Carvin, Douglas R. Cole, and Chad A. Readler, for relators.

Richard Cordray, Attorney General, and Richard N. Coglianese, Erick D. Gale, and Pearl M. Chin, Assistant Attorneys General, for respondent.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, David M. Lieberman, Deputy Solicitor, and William C. Becker, Assistant Attorney General, for intervening respondents.

Maurice A. Thompson, urging granting of the writ for amici curiae the Buckeye Institute for Public Policy Solutions, Citizens in Charge, Coalition Opposed to Additional Spending & Taxes, Ohio Citizen Action, and the Ohio Freedom Alliance.

Matthew J. Burkhart and J. Michael Johnson, urging granting of the writ for

[916 N.E.2d 466]

amici curiae ATM Education, Buckeye Christian Schools Association, Church Coalition for Decency, Citizens for Community Values, Citizens Media Group/Christian Citizen USA, Constitution Party of Ohio, Eagle Forum of Ohio, Eischen Financial Group, Evangelical Fellowship Chapel, Family First PAC, Grove City Church of the Nazarene, Homemakers for America, Institute for Principled Policy, Jobs Plus Employment Network, Mission America, New Hope Christian Center, Ohio Governmental Prayer Alliance, Pass the Salt Ministries, Richland Community Family Coalition, the Ridge Project, Inc., Rocky Fork Formulas, Inc., Sanctity of Life Foundation, Touch the World Ministry, Inc., Vandalia United Methodist Church, Victory in Truth Ministries, Women Influencing the Nation, Pastor Peter J. Foxx, Ronald Hood, Stephen J. Koob, Twyla Roman, and Pastor Wayne W. Scott.

Ulmer & Berne, L.L.P., and Donald J. Mooney Jr., urging denial of the writ for amici curiae Ohio Federation of Teachers, Ohio School Business Officials Association, Ohio Association of Public School Employees, Eve Bolton, and Jane Simon.

Vorys, Sater, Seymour and Pease, L.L.P., and Suzanne K. Richards, Richard D. Schuster, Michael R. Thomas, and Michael J. Hendershot, urging denial of the writ for amici curiae Ohio Council of Retail Merchants and Ohio Farm Bureau Federation.


123 Ohio St.3d 323

{¶ 1}, a ballot-issue committee, and Thomas E. Brinkman Jr., David Hansen, and Gene Pierce, Ohio resident-electors and members of, filed this original action seeking a writ of mandamus to compel the secretary of state to treat the video-lottery-terminal ("VLT") provisions of 2009 Am. Sub.H.B. No. 1 ("H.B. 1") as subject to referendum and to discharge her duties pursuant to Article II of the Ohio Constitution and R.C. Chapter 3519. The narrow focus of this case excludes policy considerations, which are the province of the legislative and executive branches, and is singularly centered on whether the citizens of Ohio have the right of referendum on the VLT provisions of H.B. 1, which authorize the Ohio Lottery Commission to locate as many as 2,500 VLTs at each of Ohio's seven horse-racing tracks for a potential of 17,500 machines in Ohio. The legal issue before us is whether these VLT provisions of H.B. 1 are an appropriation for the current expenses of the state government and are therefore not subject to referendum pursuant to Section 1d, Article II of the Ohio Constitution. After careful review of this important question, we conclude that our jurisdiction has been properly invoked, that mandamus is an appropriate remedy, and that the VLT provisions of H.B. 1 are subject to referendum. Because relators have established entitlement to the requested extraordinary relief, we grant the writ and direct the secretary of state to treat the VLT provisions of H.B. 1 as subject to referendum.

Facts and Procedural Background

{¶ 2} On July 13, 2009, Governor Strickland issued a directive to the Ohio Lottery entitled "Implementing Video Lottery Terminals." In particular, the governor directed the Ohio Lottery Commission to immediately take steps to implement the placement of as many as 2,500 VLTs at each of seven horse-racing tracks in Ohio upon acknowledgement by the General Assembly of the commission's authority to do so. However, the governor expressly conditioned the implementation of the directive upon the passage of the VLT provisions by the General Assembly, explaining that if the provisions were not enacted "into law as part of or prior to the FY10-11

916 N.E.2d 467

biennial budget law and such law is not signed into law by [the governor] within five days of the issuance of this Directive, the Directive shall then be deemed immediately null and void."

123 Ohio St.3d 324
H.B. 1

{¶ 3} On the same day that the governor issued his VLT directive, the General Assembly enacted H.B. 1, which includes the 2010-2011 biennial budget. H.B. 1 provides a line-item appropriation from the Lottery Profits Education Fund of over $2.2 billion to the Department of Education, which increases the appropriation to the Department of Education for Foundation Funding Fund from this fund for the current biennium by $851.5 million to reflect the expected revenues from the implementation of VLTs in May 2010 and the associated license fees. H.B. 1 also includes amendments to R.C. Chapter 3770 that authorize the State Lottery Commission to operate VLT games and promulgate rules relating to the commission's operation of VLT games, that specify that the provisions of R.C. Chapter 2915 criminalizing gambling activities are inapplicable, that bar political subdivisions from assessing new license or excise taxes on VLT licensees, and that purport to vest this court with exclusive, original jurisdiction over any claim that the provisions are unconstitutional.1

916 N.E.2d 468

{¶ 4} In enacting H.B. 1, the General Assembly declared that the amendments relating to VLTs — R.C. 3770.03 and 3770.21 — are exempt from referendum because "[they are] or relate[ ] to an appropriation for current expenses within the meaning of Ohio Constitution, Article II, Section 1d and section 1.471 of the Revised Code, * * * and therefore take[] effect immediately when this act becomes law." Section 812.20 of H.B. 1. H.B. 1 additionally indicates that certain other amendments are subject to referendum and will not become immediately effective. Sections 812.10, 812.30, and 812.50 of H.B. 1.

{¶ 5} The governor signed H.B. 1 into law on July 17, 2009.

Mandamus Case

{¶ 6} On July 20, 2009, relators filed this action seeking a writ of mandamus to compel respondent, Secretary of State Jennifer Brunner, to treat the VLT provisions of H.B. 1 as subject to referendum. We issued an accelerated briefing schedule and granted the motion of the directors of the Office of Budget and Management and the Ohio Lottery Commission to intervene as additional respondents ("intervening respondents").

{¶ 7} On July 23, 2009, relators presented for filing with the secretary of state a referendum-petition summary, consisting of numerous part-petitions containing over 3,000 signatures, and a copy of one of the summary part-petitions for filing with the office of the attorney general. The office of the secretary of state deferred to the General Assembly's declaration that the VLT sections of H.B. 1 are not subject to referendum and declined to accept the filing of the referendum petitions "[i]n the absence of a court order to the contrary." The office of the attorney general similarly rejected the filing presented to it, based on the conclusion that the VLT provisions were not subject to referendum.

{¶ 8} The rejection of the proffered filings precluded relators from circulating the referendum petition for signatures. Relators sought, and we granted, leave

123 Ohio St.3d 326

to file an amended complaint that included the events that took place after the original complaint was filed.

{¶ 9} In briefs and arguments before this court, relators contend that the VLT provisions are subject to referendum because they are not appropriations for current state expenses, they neither make expenditures nor incur obligations, and they are not temporary measures necessary to effectuate an appropriation; instead, relators argue, the VLT provisions constitute a change in the permanent law of this state that generates, rather than spends, money, and they seek a 90-day stay of the VLT provisions so that they may have a meaningful opportunity to circulate a referendum petition.

{¶ 10} The secretary of state urges that she does not have a clear legal duty to disregard the General Assembly's declaration in the bill that the VLT provisions are not subject to referendum or to adjudicate the question of whether the VLT provisions constitute an appropriation for current state expenses exempt from referendum. Instead, she maintains that she has

916 N.E.2d 469

a duty to reject referendum petitions that do not comply with express provisions of law and suggests that relators have an adequate remedy at law by way of an action for a declaratory judgment and an injunction in the common pleas court. She also contends that relators are merely seeking a declaratory judgment and an injunction, which this court lacks jurisdiction to issue.

{¶ 11} Intervening respondents contend that the VLT provisions are not subject to referendum, because they appropriate money for education. However, to the extent that the VLT provisions themselves are not direct appropriations, the intervening respondents argue that the referendum process does not apply to laws providing for appropriations for current state expenses or to laws that are "inextricably tied" to a line-item appropriation for the current expenses of the state government or state institutions....

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