State ex rel. Maurer v. Sheward

• Decision Date: 30 December 1994
• Docket Number: 93-1165,Nos. 92-1350,s. 92-1350
• Parties: The STATE ex rel. MAURER et al., Appellants, v. SHEWARD, Judge, Appellee. WILKINSON, Dir., et al., Appellants, v. MAURER et al., Appellees.
• Court: Ohio Supreme Court

Page 513

71 Ohio St.3d 513

644 N.E.2d 369

The STATE ex rel. MAURER et al., Appellants, v. SHEWARD, Judge, Appellee.

WILKINSON, Dir., et al., Appellants, v. MAURER et al., Appellees.

Nos. 92-1350, 93-1165.

Supreme Court of Ohio.

Submitted Sept. 20, 1994.

Decided Dec. 30, 1994.

Donald Lee Maurer, Leonard Jenkins, Debra Brown, Willie Lee Jester, Elizabeth Green, Lee Seiber and Rosalie Grant had been convicted of aggravated murder and sentenced to death. With the exception of Rosalie Grant, former Governor Celeste commuted the death sentences to life imprisonment without eligibility for parole. The Governor commuted Rosalie Grant's death sentence to life in prison with no restriction as to parole eligibility. Ralph DeLeo had been convicted of murder and was serving a sentence of fifteen years to life. Former Governor Celeste commuted his sentence to time served. John Salim had been convicted of felonious assault. He was serving a sentence of six to twenty-one years when former Governor Celeste granted him a full pardon.

When the former Governor granted the pardon and commutations, the Ohio Adult Parole Authority ("APA") had not been asked to conduct investigations or formulate recommendations for seven of the applicants who had been sentenced to death. Instead, their applications for clemency were filed directly with the former Governor. With respect to Ralph DeLeo and John Salim, their applications were submitted to the APA between December 6 and December 17, 1990. By January 9, 1991, the APA had taken no action on the two applications. On that day, a representative from former Governor Celeste's Office called the APA to request that it expedite review of the two applications. The APA responded that it could not complete the review process in two business days.

On January 29, 1991, George Wilson, Director of the Department of Rehabilitation and Correction, and John Shoemaker, Chief of the APA, ² filed a complaint for declaratory judgment in the Franklin County Court of Common Pleas seeking a determination that former Governor Celeste's actions were in contravention of Section 11, Article III of the Ohio Constitution, and R.C. Chapter 2967. The plaintiffs sought a declaration that the pardon and commutations granted to the defendants by former Governor Celeste were void. Current Governor George V. Voinovich successfully petitioned the court for leave to intervene as a plaintiff.

On March 6, 1991, the defendants moved to dismiss the complaint for lack of jurisdiction, alleging that the matter was nonjusticiable, because any judicial declaration as to the validity of executive clemency would unconstitutionally infringe upon the Governor's clemency power. The trial court overruled the motion on September 26, 1991. Following a bench trial, the trial judge issued a decision and entry granting a declaratory judgment to plaintiffs. The court explained that "full compliance with the requirements of R.C. 2967.07 and R.C. 2967.12 is a condition precedent to the valid exercise of the clemency power by the Governor * * * " and that the pardon and commutations granted by former Governor Celeste were invalid.

The eleven defendants appealed in six separate notices of appeal to the Tenth District Court of Appeals; their appeals were consolidated for decision. The court of appeals reversed the decision of the trial court. After considering the language of Section 11, Article III, the court of appeals found that the clause that subjects the Governor's clemency power to "such regulations, as to the manner of applying for pardons" applies only to the Governor's power to grant pardons. The court stated that the constitutional provision does not provide the General Assembly with authority to regulate the Governor's power to grant commutations. The court of appeals also determined that regulations enacted by the General Assembly apply to individuals applying for pardons but do not affect the ability of the Governor to grant a pardon on his own initiative. Specifically, the court of appeals held that nothing in Section 11, Article III of the Ohio Constitution or R.C. Chapter 2967 could limit the Governor's power to grant clemency on his own initiative, even if he chose to do so without first receiving a recommendation from the APA.

This cause is now before this court upon the allowance of a motion to certify the record.

Case No. 92-1350

The second cause submitted for review emerged from the underlying declaratory judgment action discussed above. On December 10, 1991, after the trial court denied the defendants' motion to dismiss the action, but prior to trial, the defendants sought a writ of prohibition in the Franklin County Court of Appeals. Defendants urged the court of appeals to bar the trial judge from exercising judicial power over the declaratory judgment action, because the action did not present a justiciable question. On January 28, 1992, a referee concluded that the defendants' arguments lacked merit and recommended that the court of appeals dismiss the prohibition action on the basis of this court's decision in State ex rel Ney v. Governor (1991), 58 Ohio St.3d 602, 567 N.E.2d 986. The court of appeals adopted the referee's recommendation and dismissed the petition.

This cause is now before this court upon an appeal as of right and has been consolidated with case No. 93-1165 for purposes of final determination.

Ken Murray, Columbus, for appellant Debra Brown in case No. 92-1350.

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

S. Adele Shank, Columbus, for Rosalie Grant.

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

Elizabeth A. McNellie, Joy Maciejewski and Sean M. McAvoy, Cleveland, for appellant Leonard Jenkins in case No. 92-1350.

Shaw, Pittman, Potts & Trowbridge, Thomas C. Hill, Alvin Dunn and Joseph Figini; Matan & Smith and Steven L. Smith, Cincinnati, for Willie L. Jester.

Sowash, Carson & Shostak and Herman A. Carson, Athens, for Donald Maurer.

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

Gregory W. Meyers, Columbus, for Lee Seiber.

Michael Miller, Franklin County Pros. Atty., and Bonnie L. Maxton, Asst. Pros. Atty., for appellee in case No. 92-1350.

Lee Fisher, Atty. Gen., John J. Gideon and Jack W. Decker, Asst. Attys. Gen., for appellants in case No. 93-1165 and urging affirmance for amici curiae, George Voinovich, Reginald Wilkinson and Jill Goldhart in case No. 92-1350.

K. Ronald Bailey, Sandusky, for appellee Debra Brown in case No. 93-1165.

Melanie S. Corcoran, James W. Brown III and Christopher P. Thorman, Cleveland, for appellee Leonard Jenkins in case No. 93-1165.

Steven H. Steinglass, Cleveland, urging dismissal or affirmance for amicus curiae, Law Professors' Brief amicus curiae Committee in case No. 93-1165.

Daniel T. Kobil, Paul Moke, Kevin Francis O'Neill and Peter Joy; Moots, Cope & Stanton and Benson A. Wolman, Columbus, urging affirmance for amicus curiae, American Civ. Liberties Union of Ohio Foundation in case No. 93-1165.

Squire, Sanders & Dempsey and David J. Young, Columbus, urging affirmance for amicus curiae, Catholic Conference of Ohio in case No. 93-1165.

Law Enforcement Legal Ass'n, Inc., Paul L. Cox and Walter T. Florence, Columbus, urging reversal for amicus curiae, Fraternal Order of Police of Ohio, Inc. in case No. 93-1165.

PER CURIAM.

Case No. 93-1165 requires this court to decide three issues: (1) Does Section 11, Article III of the Ohio Constitution authorize the General Assembly to prescribe procedural prerequisites to the exercise of the Governor's clemency power? (2) If so, does the General Assembly have the authority to prescribe procedural prerequisites for commutations as well as pardons? and (3) Has the General Assembly in fact imposed procedural prerequisites upon the Governor's clemency power?

We will address case No. 92-1350, which raises issues also implicated by case No. 93-1165, in Part IV of this opinion.

I

Section 11, Article III of the Ohio Constitution provides the authority for the Governor's clemency power:

"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."

Section 11, Article III was adopted as part of extensive revisions to the Constitution made in 1851. Prior to 1851, the Governor's clemency power was set forth in Section 5, Article II of the Ohio Constitution of 1802, which provided in its entirety: "He [the Governor] shall have the power to grant reprieves and pardons, after conviction, except in cases of impeachment." This section was modeled after Section 2, Article II of the United States Constitution, which gives the President the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Both the United States Constitution and the Ohio Constitution of 1802 conferred broad powers of executive clemency. The only limitations on the clemency power were that it could be exercised only after conviction (Ohio Constitution) and that clemency could not be granted in cases of impeachment (both Ohio and United States Constitutions). Neither Constitution authorized the enactment of laws to curtail the executive's...