State ex rel. Ohio General Assembly v. Brunner

Per Curiam. I ¶ 1 In the present action, respondent, Secretary of State Jennifer Brunner, asks us to reconsider or clarify our opinion or stay our order in State ex rel. Ohio Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912 (“Brunner”). She specifically asks us “to answer a critical question: do Ohio’s citizens still have the right of referendum regarding Am.Sub.S.B. No. 117, or did the time for referendum expire while this case was being litigated?” ¶ 2 For the following reasons, we hold that, despite our statements to the contrary in Brunner, Am.Sub.S.B. No. 117 became law on August 1, 2007. Therefore, pursuant to Section lc, Article II of the Ohio Constitution, the electors of this state have 90 days from August 1, 2007, to pursue a referendum. II ¶ 3 A brief restatement of the operative facts is necessary to frame this decision. On August 1, 2007, we announced the opinion in Brunner, which focused on the validity of Am.Sub.S.B. No. 117. The 126th General Assembly passed Am.Sub.S.B. No. 117 in December 2006, shortly before it adjourned sine die on December 26, 2006. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912, at ¶ 4-5. The General Assembly presented the bill to Governor Bob Taft on December 27, 2006. Id. at ¶ 6. Governor Taft chose to neither veto nor approve the bill, and instead filed it in the office of then Secretary of State Kenneth Blackwell on Taft’s last business day in office, January 5, 2007. ¶ 4 Governor Ted Strickland and Secretary Brunner officially replaced Governor Taft and Secretary Blackwell on January 8, 2007. Id. at ¶ 10. On that day, Governor Strickland asked Secretary Brunner to “return” Am.Sub.S.B. No. 104 117 to him for further review, as he believed the ten-day presentment period set forth in Section 16, Article II of the Ohio Constitution had not yet expired. Id. Secretary Brunner complied, and Governor Strickland vetoed the bill on January 8,2007. Id. ¶ 5 Approximately three and one-half weeks later, the Ohio General Assembly, Ohio Senate President Bill Harris, and Ohio House of Representatives Speaker Jon Husted requested a writ of mandamus to compel Secretary Brunner to ignore the veto and proceed as if Am.Sub.S.B. No. 117 had become law on January 5, 2007. Id. at ¶ 12. ¶ 6 We determined that Governor Strickland’s veto of Am.Sub.S.B. No. 117 was ineffective, as it fell outside the permissible time limit for vetoes provided in Section 16, Article II of the Ohio Constitution. Id. at ¶ 50. Accordingly, we granted a writ of mandamus compelling Secretary Brunner “to treat Am.Sub.S.B. No. 117 as a validly enacted law and to fulfill all of [her] statutory duties concerning that law.” Id. at ¶ 51. ¶ 7 Importantly, we also noted that “[t]he parties did not request a stay of the effective date of the law to allow for circulation of referendum petitions, and we express no opinion on whether a stay may be permissible. Accordingly, Section lc, Article II of the Ohio Constitution provides for the effective date of Am.Sub.S.B. No. 117.” Id. at ¶ 52. Thus, we deemed the law to be effective 90 days after it was originally filed in the secretary of state’s office by Governor Bob Taft, i.e., April 5, 2007. Ill ¶ 8 The constitutional right of citizens to referendum is of paramount importance. “The legislative power of the state shall be vested in a General Assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.” (Emphasis added.) Section 1, Article II, Ohio Constitution. As the United States Supreme Court has observed, “The referendum * * * is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies. The practice is designed to ‘give citizens a voice on questions of public policy.’ ” Eastlake v. Forest City Ents., Inc. (1976), 426 U.S. 668, 673, 96 S.Ct. 2358, 49 L.Ed.2d 132, quoting James v. Valtierra (1971), 402 U.S. 137, 141, 91 S.Ct. 1331, 28 L.Ed.2d 678. ¶ 9 This reserved power of referendum applies to every law passed in this state and provides an important check on actions taken by the government. See State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225, 234, 631 105 N.E.2d 582. Laws generally do not take effect until 90 days have passed from the date they are filed by the governor with the secretary of state, to allow for a possible referendum. Section lc, Article II, Ohio Constitution. If no referendum petition is filed in this 90-day period, the law becomes effective immediately; if a referendum petition is filed, the law becomes effective when a majority of electors approve it or it is determined that the referendum petition lacks a sufficient number of valid signatures. See Thornton v. Salak, 112 Ohio St.3d 254, 2006-Ohio-6407, 858 N.E.2d 1187, syllabus. Thus, the 90-day period is a critical time to initiate the process of giving citizens their voice on a question of public policy. ¶ 10 Brunner was a unique case, both factually and legally. Governor Taft’s filing of Am.Sub.S.B. No. 117 in Secretary of State Blackwell’s office would normally start the time for referendum. However, his successor, Governor Strickland, purported to undo this action by requesting that the bill be returned, and subsequently vetoing it. When we invalidated Governor Strickland’s action, we proceeded as if the bill had never been vetoed and, pursuant to Section lc, Article II, made the law effective 90 days from the day Governor Taft filed it in the secretary of state’s office. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912, at ¶ 52. Secretary Brunner did not request that we stay that action. ¶ 11 However, this result is problematic under the Constitution, given the unique facts of this case. While courts are to “strictly construe applicable requirements for initiative and referendum,” including the time within which a referendum petition must be filed,1 the backdating of Am.Sub.S.B. No. 117 cannot change the fact that the law was a nullity from the date of the veto, January 8, 2007, until the date of our decision, August 1, 2007. A citizen opposed to Am.Sub.S.B. No. 117 could not know whether the law was valid or invalid. The conduct of one governor made the law valid, then the conduct of a successor governor made the law invalid. Never in Ohio’s history has that circumstance been created. ¶ 12 It could be reasonably argued that following Governor Strickland’s veto, there was no law to challenge and thus no need to pursue referendum. Objectors had reason to act only after we announced our opinion; by then, it was too late to begin a successful referendum-petition effort. ¶ 13 Amici Ohio Alliance for Civil Justice et al. urge us to uphold the effective date established in Brunner. They argue that because neither Secretary Brunner nor the numerous amici in the case requested that we stay the date on which Am.Sub.S.B. No. 117 became law, there is nothing for us to reconsider 106 here. They further suggest that such a stay would disrupt the ordinary lawmaking process even further, potentially delaying the effective date of Am.Sub.S.B. No. 117 until after the November 2008 election, and that referendum time limits should be strictly construed. ¶ 14 While we are cognizant of these concerns and sought to definitively resolve this matter in Brunner, we cannot simply brush aside the powers specifically reserved by the citizens of this state in the Constitution, regardless of whether these concerns were raised in the initial suit by the named parties. The simple fact remains that in this case, citizens were not put on notice that Am.Sub.S.B. No. 117 was a valid law subject to referendum until August 1, 2007. In pursuing the proper resolution of the constitutional issue before us, we unintentionally deprived the citizens of the right to referendum that they would have enjoyed were it not for the unavoidable delays associated with judicial review. This result is unacceptable. ¶ 15 In view of the unique circumstances of this case, in which the actions of two governors and two secretaries of state were diametrically opposed, the only satisfactory solution is to move the beginning of the 90-day referendum period to the date of the decision in Brunner. Given Secretary Brunner’s timely motion for reconsideration or stay, a significant amount of the 90-day referendum period remains. Interested citizens now have ample opportunity to circulate petitions and seek a vote on the validity of the law in accordance with Section lc, Article II of the Ohio Constitution. While this result is an unusual one, it is necessary to safeguard the rights reserved to the citizens of this state under the Ohio Constitution. IV ¶ 16 For the foregoing reasons, we hereby amend our decision in Brunner to move the date on which Am.Sub.S.B. No. 117 became a law to August 1, 2007. The citizens of this state have 90 days from that date to file a referendum petition against it pursuant to Section lc, Article II of the Ohio Constitution. So ordered. Moyer, C.J., Lundberg Stratton and O’Connor, JJ., concur. Lanzinger, J., concurs in judgment only. Pfeifer, J., concurs in part and dissents in part. O’Donnell and Cupp, JJ., dissent. Footnotes [1] State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 38; see, also, Dubyak v. Kovach (1955), 164 Ohio St. 247, 250, 58 O.O. 1, 129 N.E.2d 809.