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Are Sundays "Days"?

One of new Ohio Governor Ted Strickland's very first official acts was vetoing a bill that outgoing Governor Bob Taft had intended to let become a law. The legislation, Senate Bill 117, would have amended the state's consumer protection laws to cap noneconomic damages in predatory lending suits and limit the ability of Ohio municipalities to sue paint manufacturers aleging that lead paint used decades ago constitutes a "public nuisance" for which the manufacturers are responsible.

According to the Cleveland Plain Dealer, there is a dispute over whether Governor Strickland's veto was constitutional. Once the legislature passes a bill, it will become law if neither signed nor vetoed by the Governor within ten days. At issue is whether the to count Sundays when the legislature is out of session. Bill supporters say "yes"; Governor Strickland and incoming state Attorney General Marc Dann say "no." The relevant Constitutional provision provides:

If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state.
Because the legislature adjourned after passing the bill, supporters maintain, Sundays should be included in the ten days, and the clock ran out on January 5. Strickland's office, however, claims he had until Monday, January 8, which is when he vetoed the bill. At present, it looks like this one will end up in court.

Related Posts (on one page):

  1. Ohio Legislators File Sunday Suit:
  2. Are Sundays "Days"?
David Chesler (mail) (www):
If the answer is that "10 days" in the second path equals "10 days, Sundays excepted" in the first path, I will lose any respect for the ability of jurists to use English.
1.9.2007 7:38am
Steve P. (mail):
Second David's response.
1.9.2007 8:12am
AppSocRes (mail):
The constitutional language is clear. But liberals (and this is obviously a bill that liberals must hate since it runs counter to the interests of the Trial Lawyers Association) always find umbras, penumbras, and even auras in constitutional language that we lesser mortals cannot discern and that, mirabile dictu, always support the liberal position.
1.9.2007 8:18am
Visitor Again:
Isn't there an accepted principle of statutory construction that governs this that supports construing the second reference to 10 days to include the exception for Sundays explicitly mentioned in the first reference to 10 days? I rather think there is, but I could be wrong. Why would the Legislature exclude Sundays from the 10 days in the first instance but not the second?
1.9.2007 8:33am
Ted Frank (www):
Why didn't Taft just sign the bill?
1.9.2007 8:45am
anomdebus:
VA,
Can't speak legally, but one possibility is that given the bill is returned signed physically within 10 days while the legislature is in session, and they are unlikely to be open on Sunday, it allows the extra day(s) to make the 'personal appearance'. It is also a good possibility that it was meant as a one day extender, rather than a two day extender. Saying that if calendar day 10 is a Sunday when it gets vetoed, the bill can still be handed in for full credit on Monday.
I would liken it to a policy where in paying for a bill, a company would accept payment on the day it was due at its office, but if mailed-in would require it be postmarked a day in advance. So, you can drop it off the Monday it was due, but in that case, you would have to mail it in two days in advance, because you can't get a postmark on Sunday.
It could have been made clearer, though.
1.9.2007 9:03am
Perry Dane:
I do think that the better argument is that "Sundays excepted" is implied in the second appearance of "ten days." Note that, until not all that long ago, it was generally assumed, in all sorts of legal contexts, that Sunday was not a working day, and that legally binding documents would not be executed on Sunday. Thus, for example, even in the absence of statutory language, it was held that if a period under a statute of limitations would otherwise run out on Sunday, the plaintiff would have until Monday to file his action. On the other hand, some courts held that a debt that would otherwise be due on Sunday would in fact be due on the preceding Saturday.

In the light of this well-established custom, the "ten days" in the statute in the statute, even in the absence of any explicit language otherwise, would not be read to provide for Sunday being the "tenth day." That leaves several possibilities: (1) if the tenth day would otherwise be a Sunday, postpone it till Monday, (2) if the the tenth day would otherwise be a Sunday, push it forward to Saturday, or (3) exclude all Sundays from the calculation.

The explicit reference to "Sundays excepted" in the first "ten days" mentioned by the statute could be read as clarifying which of these three possible rules should apply. The second time around, though, with our without any explicit mention of the Sunday problem, one of the three rules still has to apply (i.e., Sunday cannot be the tenth day). The most sensible reading is that the same rule (i.e., rule (3)) applies to the second "ten days" as to the first. Even if we go for a more restrained reading, though, that would at least kick in rule (1).

Why, then, was the "Sundays excepted" language left out the second time around? Probably because, once the point was made, it would have been unnecessary overkill, and stylistically a little awkward, to spell out the same proviso twice.
1.9.2007 9:09am
anomdebus:
PD,
A difference between the Governor and a regular shmoe is that the Governor has the power to make sure the office of the Secretary of State's office is open on Sunday if need be.
All the more reason to have incredibly tedious language in laws, spelling stuff out in excruciating details.
1.9.2007 9:18am
John (mail):
If the 10 days ran out on a Sunday, then there are two Sundays to contend with--the day the 10 days ran out and the Sunday a week earlier. Under the "Sundays excepted" rule, the Monday of the veto was actually only the ninth day, whereas if Sundays were included it would be the 11th.

It is odd that the constitution would use such different language. But is there another constitutional or statutory provision that says that if something must be done on a date that turns out to be a weekend you can do it on the following Monday?
1.9.2007 9:25am
Perry Dane:

A difference between the Governor and a regular shmoe is that the Governor has the power to make sure the office of the Secretary of State's office is open on Sunday if need be.


You're missing the point, I think. Our legal culture assumed until recently that it would be wrong to conduct business on Sundays. If anything, it would be more wrong for a governor than for a regular shmoe.


All the more reason to have incredibly tedious language in laws, spelling stuff out in excruciating details.


Yes, but... One problem is that, with the passage of time, meanings that once might have been obvious can lose their clarity. In 2006, we might think that it would be no big deal if a governor signed a veto on a Sunday. But that might not reflect the assumptions underlying the constitutional language here. (This is, by the way, not an argument for inflexible originalism, in which I do not believe, but for historical sensitivity.)
1.9.2007 9:31am
JRL:

I do think that the better argument is that "Sundays excepted" is implied in the second appearance of "ten days."


Why then do you need 4 paragraphs of explanation to support that position, as opposed to just taking the language at face value, which needs no paragraphs of explanation?
1.9.2007 9:47am
anomdebus:
BTW, the excruciating detail I was talking about was that any clause introduced needs to be tied to all instances should apply to. If they could have assumed what you are assuming, why mention it at all?
I was merely exploring a possible interpretation.
1.9.2007 9:54am
Sarah (mail) (www):
Umm, maybe it's just me, but considering that even my sister's (really rather evil) history teacher isn't counting Sundays in his "if you don't turn it in within 48 hours, you can't get any credit for it at all" policy, and that you don't have to have your taxes submitted by the 15th of April if it falls on a Sunday (i.e. by the 14th of April in those years) but rather get an extra day... this seems pretty straightforward. At least in terms of what people were thinking when they wrote the statute.

And, you know, I don't honestly expect my governors to be running around vetoing things (a patently non-emergency, "we can do this sort of thing during ordinary business hours" task) on Sunday morning, and badgering some poor clerk in the Secretary of State's office to come into work on her day off just to accept that veto. This is exactly the sort of "we don't really count Sundays and national holidays for this requirement" thing, isn't it?

John (9:25), I assume that's because the 1st was a Monday but a national and state holiday, so they're not counting it. An argument in favor of not counting Sundays, I dare say.

(As to why Taft didn't just sign it: my theory is that he was hoping to last out this final week with as little press as humanly possible. The man had a 12% approval rating. Amongst other things, anything he put his name to in the last year or so had a tendency to look bad to everyone on those grounds alone. It's kind of sad.)
1.9.2007 9:55am
Jake (Guest):
Another fascinating chapter in the eternal battle between ejusdem generis and expressio unius est exclusio alterius.

To me it's more natural to read the statute so that "days" has the same meaning in both places, which would require consistently excluding Sundays. I would prefer to see the bill become law, but I think the new governor has the better argument on the procedure here.
1.9.2007 10:11am
Perry Dane:
<i><blockquote>
Why then do you need 4 paragraphs of explanation to support that position, as opposed to just taking the language at face value, which needs no paragraphs of explanation?
</blockquote></a></i>

Funny, when I read the language "at face value," I have to agree with Jack that it makes no sense for the second "ten days" to be so different from the first. I hear (I really do) the argument that, if the drafters wanted to exclude Sundays in both instances, they could have just repeated "Sundays excepted" the second time around. But my instinct is just the opposite: if the drafters had wanted to exclude Sundays in one instance and include Sundays in the other instance, they could easily have made the contrast explicit by writing "ten days, Sundays <i>not</i> excepted" the second time around.

BTW, as I look a bit further into all this, it seems that the case law is more varied than I thought at first. Some courts applied a presumption that, in periods of a week or less, Sundays were excluded, but in periods of more than a week, they weren't. But that wouldn't help resolve the question here, where the language is clear in one instance and ambiguous (i.e., without a definitive "face value" meaning) in the other.
1.9.2007 10:30am
Steve:
I note that there are only two references to "Sunday" in the Ohio Constitution; the one identified in this post, and a provision mandating that neither house of the Legislature "shall, without the consent of the other, adjourn for more than five days, Sundays excluded." Both of these, obviously, relate specifically to the legislature.

An analysis of how many other time-related provisions there may be in the Constitution, and whether they relate to the legislature or some other branch of government, is sadly beyond the scope of this blog comment. But for the curious, you can look here.
1.9.2007 10:33am
Anderson (mail) (www):
Sigh. Every state should simply incorporate the relevant rule of civil procedure for day-counting.

Not that it's foolproof; Wright &Miller discuss 3 competing ways of counting days for when a reply to a motion received by mail is due.
1.9.2007 10:35am
Elliot Reed:
Why didn't Taft simply sign the bill? Is this a devious plot to force Strickland to start his term by taking the side of "judicial activism"?
1.9.2007 10:35am
Bpbatista (mail):
Sorry all, but plain language governs. "Ten days" means 10 days. If the drafters of the Constitution meant "ten days, Sundays excepted", they would have said so as they did in the first portion. They did not. The meaning is plain on its face and there is no ambiguity. Reaching a different conclusion requires adding language to the provision. That is a no-no under Ohio rules of construction. Perhaps more decisively, Republicans control the Ohio Supreme Court 5-2.
1.9.2007 10:41am
Bpbatista (mail):
Taft didn't sign the bill because he is the most incompetent governor in the history of the state.
1.9.2007 10:41am
Glenn W. Bowen (mail):

Why didn't Taft simply sign the bill? Is this a devious plot to force Strickland to start his term by taking the side of "judicial activism"?


if they'd have thrown in a nice set of clubs, he would've done it.
1.9.2007 10:43am
JB:
This is why I have no respect for government. If anyone in personal dealings with me pulled this kind of crap stunt, I'd never speak to them again.

When you toss common sense out of government, you let in all the abuses that we decry. It may end with judicial activism and penumbras, but it begins right here with the abandonment of common sense.

If the bill had a typo and instead of "10" read "1000," would the same people allow Taft or his successor to, 2 and a half years later, make a binding decision?
1.9.2007 10:53am
Anderson (mail) (www):
Sorry all, but plain language governs.

Sorry BPBaptista, but "plain language" isn't plain. The drafter could well have concluded that, having excepted Sundays once already, it was understood to be like that in the 2d example.

As Fowler once noted, the "repetitive" writing that the layperson mocks in legalese, actually is there for a reason. Some of the time, anyway.
1.9.2007 10:53am
Visitor Again:
As some have already noted, if the 10th day fell on a Sunday, that would require either that the bill with objections be filed within only eight or nine days (depending on whether or not the Secretary of State's office is open on Saturdays) or that the Secretary of State specially open the office on Sunday to accommodate the filing. I think it absurd to require either of these things; eight or nine days is not the specified 10 days, which is itself already a very short amount of time without further truncation, and requiring the special opening of the office on Sunday is ridiculous. The principle against a construction that produces absurd consequences compels a construction that the second reference to 10 days includes the same exception for Sundays as the first reference, at least where the last filing day falls on Sunday.
1.9.2007 10:56am
Rich B. (mail):

If the answer is that "10 days" in the second path equals "10 days, Sundays excepted" in the first path, I will lose any respect for the ability of jurists to use English.


and


I do think that the better argument is that "Sundays excepted" is implied in the second appearance of "ten days."


This is why neither of you are judges.

The answer isn't (and shouldn't be) obvious. The proper default method for counting days is provided in Ohio Revised Code Sec. 1.14. Under that Section, all days are counted, except that if the final day is a Sunday or legal holiday, the count shall be extended one day. Thus, final Sundays/holidays don't count, but intermediate Sundays/holidays do.

I don't know how that works out in the present case, but that's the rule. The first reference to "ten days" provides an exception to 1.14 -- the second reference does not. Therefore, the default rule of 1.14 is applied.
1.9.2007 10:58am
Elliot Reed:
Anderson - I agree. Both readings are quite possible, but I think the "Sundays excepted" reading makes more sense given the customs of the day and the forced construction that would have resulted from making the limitation explicit a second time.
1.9.2007 11:08am
Elliot Reed:
Rich - interesting argument. But why should the Ohio Revised Code (passed under the Ohio Constitution, presumably) govern the interpretation of the Ohio Constitution? That would seem to give the legislature an end-run around the constitutional amendment process by allowing it to redefine the meaning of terms in the document.
1.9.2007 11:11am
Perry Dane:
A federal statute in effect in 1888 read as follows:
In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ or [of] error, by lodging a copy thereof for the adverse party in the clerk's office, where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward, with the permission of a justice or judge of the appellate court."


Question: In the second mention of "sixty days," are Sundays excluded, as they are explicitly in the first?

Answer: Yes.

See Danville v. Brown, 128 U.S. 503 (1888)

The case isn't exactly like ours, for reasons I don't need to go into, but it's in the ballpark.

More generally, it's interesting how we disagree, not only about the plain meaning of the language, but even about what "plain meaning" is. My sense is that, in "ordinary language," we leave out all sorts of stuff all the time, and assume that the reader or listener will understand anyway. That is how "plain meaning" is usually conveyed. It's only a sort of lawyerly literalism that insists that everything be spelled out. So, despite their claims to be defending common sense and plain meaning, it's really, IMHO, the people who argue that the second "ten days" includes Sundays who are being, dare I say it, "legalistic." (Not that there's anything wrong with being legalistic. I once taught a whole course about what it means to be "legalistic.")

As usual, these Volokh blog postings are often more interesting for the deeper issues they provoke than for the immediate question they raise. Thanks, Jonathan.
1.9.2007 11:16am
Visitor Again:
The Governor loses if intermediate Sundays are not excluded. The only way he can win is if all Sundays in the 10-day period are excluded.

According to the Plain Dealer story, "The final copy of Sub. SB 117 was time-stamped as arriving at the governor's office Dec. 27." So day 1 is the following day under general rules of time calculation, which I imagine do not differ in Ohio.

Dec. 28 - day 1 Thursday
Dec. 29 - day 2 Friday
Dec. 30 - day 3 Saturday
Dec. 31 - day 4 not excluded as an intermediate Sunday
Jan. 1 - day 5 not excluded as an intermediate holiday
Jan. 2 - day 6 Tuesday
Jan. 3 - day 7 Wednesday
Jan. 4 - day 8 Thursday
Jan. 5 - day 9 Friday
Jan. 6 - day 10 Saturday
Jan. 7 - day 11 Sunday
Jan. 8 - day 12 Monday - the Governor filed his objections
1.9.2007 11:26am
Just Dropping By (mail):
"The Governor loses if intermediate Sundays are not excluded. * * * Jan. 6 - day 10 Saturday"

But under your counting system, arguably since the 10th day fell on a Saturday the deadline should roll to the following Monday. A number of state supreme courts have concluded that where a statute, regulation, or constitutional provision recites that "Sundays and holidays" aren't included, Saturdays should also not be included because prior to the early 20th Century, court houses and state offices were normally open on Saturdays, but now they aren't, so such provisions are archaic in failing to include Saturdays. I don't know if Ohio has ever had to decide that question, but that certainly seems to be the majority rule. (It usually comes up in the context of statutes of limitation or notices of appeal.)
1.9.2007 11:46am
Jonathan H. Adler (mail) (www):
According to the news reports, Taft did not sign the bill because he objected to the caps on non-economic damages for predatory lending. He did not veto it because he supported other portions of the bill. So, he decided to just let it become the law.

JHA
1.9.2007 11:48am
Anderson (mail) (www):
Notice how a clear rule would snatch the bread from the mouths of lawyers' children. Heavens forfend!
1.9.2007 11:58am
Just Dropping By (mail):
To follow up on my earlier post, here's a good case discussing the issue of whether to exclude Saturdays from a time computation when a legislative scheme only says "Sunday": Dutton v. McKinley County Bd. Commn'rs, 822 P.2d 1134, 1136-38 (N.M. Ct. App. 1991)

(Of course, it's arguably inapplicable to constitutions.)
1.9.2007 12:05pm
David Chesler (mail) (www):
Jake (guest)
To me it's more natural to read the statute so that "days" has the same meaning in both places, which would require consistently excluding Sundays.

Yes, days has the same meaning in both places, which is "a 24-hour time period from midnight to midnight". The first part talks about non-Sunday 24-hour time periods, the second talks about 24-hour time periods.

If "Except Sundays" is implied in the second, why isn't "ten" implied there also, so that it could have said

... in which case, it becomes law unless, within a fixed time after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state.


One instance does not create a pattern. There is no ambiguity in "ten days". Why ten days? Why not ten days? If the Governor knows the 10th day is a Sunday he can file it on Saturday, or if he wants to take the weekend off on Friday, or if he wants to take a long weekend on Thursday.

If I read the bigger picture, I think this is saying that there is no pocket veto unless the Governor takes some action.

The drafters of the Ohio were surely familiar with the US Constitution's

If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.


On the one hand, that clause has an ambiguity as to what it means for adjournment to prevent the return of the bill with objections -- and perhaps the Ohio Constitution was trying to avoid that ambiguity, although it looks like that didn't come into play until 1929 -- but on the other hand the US Constitution is very clear that the ten days (Sundays excluded) apply to both regular vetos and pocket vetos. The 10 day period is listed only once, in the description of the exception to the general case where the President either signs or vetos the bill.
1.9.2007 12:25pm
ruidh (www):
It's certainly an arguable point and not the cut and dried situation that some posters would have it be. At the time the Constitution was enacted, it would certainly have been the understanding that *no* business was *ever* done on a Sunday, so the second reference to 10 days would *clearly* include the the excluding Sundays modification in the first reference.
1.9.2007 1:02pm
David Chesler (mail) (www):
If it was so well understood that 10 days means 264 or 288 hours, depending on how many Sundays are in there, just as "day" was understood to be not an allegorical day or a Martian day, why did they put the modification in there at all?

US Constitution puts in in parenthetically, which is sort of a signal that it's a bit that could be skipped over without changing the main meaning, Ohio does not.

FWIW, Carlos Mencia has a routine about stupid signs. One is a restaurant that says "Open 7 days a week, Sundays too." He asked the manager about the redundancy and the manager said "Yes I know, but when the sign only said 'Open 7 days a week' people kept asking me 'Are you open on Sunday?'"
1.9.2007 1:12pm
Visitor Again:
But under your counting system, arguably since the 10th day fell on a Saturday the deadline should roll to the following Monday.

Just Dropping By:

Hey, I'm on your side on this, per my comments above. My only point was that the last filing day falls on a Sunday/holiday statutory rule in Ohio, stated by Rich B., would not be enough to help the Governor win even if it did apply to time periods specified in the State Constitution. Since both the Ohio Constitution and the Ohio statutory rule, as stated by Rich B., except Sundays but do not mention Saturdays, I figured Ohio has things open on Saturday.

In California, a statute specifically states that if the last filing day falls on a Saturday, Sunday or holiday, the papers may be filed on the first day thereafter (although the rule does not apply to some things and you have to be careful).

I wonder whether the Ohio Supreme Court will be as open to construing the constitutional time provision in a common sense way as other courts have been to construing statutory time provisions in a common sense way. It is said the court is conservative, and there may be justices who will say to construe the constitutional provision to exclude Saturdays as well as Sundays would be to amend the constitution improperly.

So, Anderson is right, as usual. All this is grist for the lawyers' mill. The thought often occurs to me that legislatures and courts and founding fathers deliberately cast the law they create in terms that ensure there will never be a shortage of work for lawyers.
1.9.2007 1:16pm
Bpbatista (mail):
All of these creative arguments and hair-splitting are unnecessary if one simply reads the provision as written: "ten days" means 10 days, not 10 days except Sunday. The plain meaning -- and a Republican majority on the Supreme Court -- will trump Strickland's veto.
1.9.2007 1:18pm
Donald (mail):
The substantive issue being discussed is interesting, but I think there's a procedural question that's as or even more interesting: how does the matter reach the courts, precisely? Do members of the General Assembly have standing to sue to force the laws inclusion in the next publication of Ohio Revised Code? Or does the issue have to wait for the next-filed tort claim that would be (or would have been) affected by the legislation, and the parties to that litigation will argue (no doubt with the help of the State as an amicus) as to whether the bill has become a law?
1.9.2007 1:27pm
A.S.:
Donald - the linked article does state "Attorney General Marc Dann, who, like Strickland, is a Democrat, said he would "vigorously" defend the governor's veto. But he also said he would offer legal counsel to members of the Ohio General Assembly if it wanted to sue."

This at least implies that the Attorney General thought that the General Assembly might be able to sue. It's also an interesting conflict of interest for the AG, I think.
1.9.2007 1:33pm
Stephen C. Carlson (www):
According to the Plain Dealer story, "The final copy of Sub. SB 117 was time-stamped as arriving at the governor's office Dec. 27."

It's nice that the story mentions this fact, but isn't the relevant provision "within ten days after such adjournment"? When was the adjournment? Did it occur before or after the arrival of the bill?
1.9.2007 1:34pm
Stephen C. Carlson (www):
One instance does not create a pattern. There is no ambiguity in "ten days". Why ten days? Why not ten days? If the Governor knows the 10th day is a Sunday he can file it on Saturday, or if he wants to take the weekend off on Friday, or if he wants to take a long weekend on Thursday.

Or the Governor can order the office of the secretary of state to have someone there on Sunday to accept the filing. The earlier "Sundays excepted" provision means that the Governor cannot force the legislature to accept it on Sunday but still have at least ten days to consider it. Perhaps, then, there's a separation of powers argument as well as textual reason why the periods don't have to be the same.
1.9.2007 1:56pm
RV:
It would be interesting to just poll people on what their gut interpretation is of a Constitutional provision with this language. When I first read it without having heard of the story before and not having a political preference for the outcome, I assumed the ten days were the same in both instances. That is, both references mean ten non-Sunday days. Using the same language without explicit distinction implies that you mean the same thing. Of course, drafters of laws, contracts, and Constitutions really should be extra clear and redundant as a matter of good practice.

Not that Constitutional interpretation should always go with the obvious reading or, at least, what would be obvious if a regular person were speaking or writing in a non-legal context.
1.9.2007 1:56pm
Goober (mail):
Interesting. I can't locate a link (and it may not be available online) but I recall some short journal piece (possibly in the Green Bag 2d, actually) about counting days for the FRCP. Roughly, five days, ten days etc. typically referred to business days, and seven days, fourteen days etc. to calendar days, so that five days was always as long as (and frequently longer) than seven days, etc.
1.9.2007 2:07pm
Just Dropping By (mail):
"I can't locate a link (and it may not be available online) but I recall some short journal piece (possibly in the Green Bag 2d, actually) about counting days for the FRCP."

The general rule provided by F.R.C.P. 6(a) (as amended) is:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.
1.9.2007 2:22pm
Visitor Again:
It's nice that the story mentions this fact, but isn't the relevant provision "within ten days after such adjournment"? When was the adjournment? Did it occur before or after the arrival of the bill?

You're right, of course. When I turned to the story, which focused on the date the law reached the Governor, I lost sight of the statutory language. I've tried to find the Ohio legislature's adjournment date, but it was a frustrating effort. I simply could not find it. Lots of talk about closing days, but no sure date.
1.9.2007 2:33pm
K Bennight (mail):
I might well have written the subject passage more or less as it appears, intending the two 10-day periods to be counted the same way. Whatever the appropriate outcome of this dispute, I see I would have been wrong to do so. Anything that causes this much discussion is to be avoided.
1.9.2007 2:40pm
Visitor Again:
From today's Columbus Dispatch:


Legislative leaders and Taft's office say the 10-day period began Dec. 26, the day the Senate adjourned after a lameduck session, said former Taft spokesman Mark Rickel. That would mean the bill became law on Friday.

Strickland and his new legal counsel, Kent Markus, say the clock started ticking Dec. 28, the day after the bill was transmitted to the governor's office — meaning the 10 days didn't expire until the end of yesterday.
1.9.2007 2:42pm
Dan Palmer (mail):
Based on Visitor Again's quote from the Columbis Dispatch, the 10-days had to be up no later than the Jan 5th (Sunday excepted) or Jan 1st (Sunday included) because the statute clearly says the clock started at ajournment in this case, not when the Governor received the bill. Had the bill be approved mid session, then the day the Governor received it would be when the countdown began.

However, I second the many commenters who wonder why Taft didn't just approve the bill if such was his intention. His approval rating and reputation were already crap, what was there to lose by approving via an affirmative action rather than through inaction.
1.9.2007 3:28pm
David Chesler (mail) (www):
I assumed the ten days were the same in both instances. That is, both references mean ten non-Sunday days. Using the same language without explicit distinction implies that you mean the same thing.

How much more explicit than modifying one and not the other does the distinction have to be?

There is no question that "ten days" means the same thing both places it is used, and since in one of those cases it is modified by "Sundays excepted" then without that modification it includes Sundays. (Otherwise the exception would have added nothing -- and we have to assume the drafters put it there for a reason.)

It's not like Sundays are some rare corner case (compare "No Dogs Allowed except Service Dogs" -- ADA and such mean you can never exclude service dogs, so all "No Dogs Allowed" signs should be read to except Service Dogs. [And service dogs means dogs aiding the blind, deaf, or otherwise handicapped, not some other meaning.]Far more than 5/7 or even 6/7 of domesticated dogs are other than service dogs -- Sundays are more common than service dogs.)

Consider rule 6A as presented above, "When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Presumably when the time prescribed or allowed is not less than 11 days, intermediate Saturdays, Sundays and legal holidays are counted. (The rule excludes terminal S,S,lh for all lengths of periods of time.) Would anybody say "days in periods less than 11 days has the same meaning as days in periods greater than 10 days, so both exclude intermediate non-working days"?

But I don't see where Strickland can read "within ten days after such adjournment" as "within ten days of being transmitted to the governor's office".
1.9.2007 3:30pm
Charlie Hallinan (mail):
The governor's position does seem to depend on using the date of presentment to the governor, rather than the date of adjournment, as the starting point for the computation of days. The Ohio Senate adjourned December 26, according to its journal, and because it was the originating house it was the body whose adjournment prevented the return. The bill was presented to the governor on December 27. Whether Sundays are included or excluded, ten days after adjournment expired no later than Saturday, January 6. The only way to extend the ten days to January 8 is to start with the date of presentment and exclude Sundays. This strikes me as a far tougher case for the new governor to make since the constitutional text seems (to me, at least) pretty clearly to compute the time for vetoes in cases of adjournment from the date of adjournment and not from the date of presentment.

On the other hand, the fact that the governor returned the bill to the Senate clerk (who refused to accept it), instead of filing it with the Secretary of State (as is appropriate in cases of vetoes following adjournment), suggests that his position is that the adjournment part of the rule doesn't apply at all, presumably on the theory that the 127th General Assembly came into session on January 2 and he was therefore not prevented from returning the bill by the adjournment of the 126th Assembly in December. If so, the central question appears to be, not how to count Sundays, but whether a bill can be vetoed by returning it to a successor Assembly.

Pertinent part of the text of Ohio Constitution art. II, sec. 16:

If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state. The governor shall file with the secretary of state every bill not returned by him to the house of origin that becomes law without his signature.
1.9.2007 3:36pm
The River Temoc (mail):
This is why I have no respect for government. If anyone in personal dealings with me pulled this kind of crap stunt, I'd never speak to them again.

JB, you should make that no respect for *lawyers*, not government. Trust me, most people in the legislative and executive branches have little patience for this kind of wordsmithing. To think we're expending resources on such idiotic minutae when we've got real issues to be addressing in the judiciary is mind-boggling.

On the merits of this issue, though, I agree with Bpbatista, who wrote, "'If the drafters of the Constitution meant "ten days, Sundays excepted', they would have said so as they did in the first portion." That said, I'm unimpressed with the first few posters who used this issue to complain about liberals and their penumbras. Given that there's so much disagreement over the correct outcome here on this blog, you can't say it's an ideological split.
1.9.2007 5:10pm
The River Temoc (mail):
The answer isn't (and shouldn't be) obvious. The proper default method for counting days is provided in Ohio Revised Code Sec. 1.14.

Does the section of the Ohio Revised Code in question govern the interpretation of other statutes? If not, how can they provide a general answer to the question?
1.9.2007 5:12pm
Thief (mail) (www):
See, this is the sort of thing that makes even an inelegant solution like the "pocket veto" look sane...
1.9.2007 5:14pm
Steve:
My view of the gist of the provision is something like "the Governor gets 10 days (excluding Sundays) to return a veto, but if he can't return it due to adjournment of the legislature, he gets some extra time." It seems contrary to the provision's intent for the Governor to wind up with LESS time due to an adjournment.
1.9.2007 5:31pm
Guest12345:
What exactly is presenting a bill to the govenor? To me the relevant section of law doesn't take into account the case where the bill is not presented to the govenor before the adjournment.
1.9.2007 5:32pm
Guest12345:
What Steve said.
1.9.2007 5:33pm
RV:

I assumed the ten days were the same in both instances. That is, both references mean ten non-Sunday days. Using the same language without explicit distinction implies that you mean the same thing.

How much more explicit than modifying one and not the other does the distinction have to be?


My point was just that in normal speech in writing among normal people, not lawyers, when you make a clarification the first time you mention something, you are not required to make that same clarification each successive time you use the term. If at the beginning of a paragraph or conversation a person mentions that Sundays are not included in days (not an off-the-wall, unique kind of clarification as Sunday is not a business day), it is implied throughout unless a later distinction is made and most normal listeners/readers will understand that. I would never rely on this convention when drafting a contract, of course, but outside the legal and/or ivory tower it's not such a crazy concept that you don't have to repeat yourself or use definied terms all the time in order to be understood. Unlike when I am wearing my lawyer hat, I don't e-mail my friends: "When I was at the store on Sunday, specifically the Target at Bailey's Crossroads, (hereinafter the "Store")..."
1.9.2007 5:36pm
Arbusto Spectrum:

How much more explicit than modifying one and not the other does the distinction have to be?

Actually, they could have been much more explicit -- they could have, and most likely would have, included the words "Sundays included" if that was their meaning. But they didn't.
Oh well. I think it is completely safe to assume that the writers meaning was the same as it was in the prior half of the paragraph -- ten days, excluding Sundays.
1.9.2007 5:45pm
Ohio Lawyer:
Y'all are missing a key phrase in the Ohio constitution. Assuming that Sundays don't count in some circumstances, the non-Sunday provision does not apply merely because the general assembly has adjourned. It applies "unless the general assembly by adjournment prevents [a bill's] return[.]"

Here, counting Sundays, the time ran out on January 2, 2007. The Ohio General Assembly was back in session that day for opening day ceremonies. See, http://www.legislature.state.oh.us/today.cfm.

Because the General Assemby was back in session within ten days not counting Sundays, the adjournment did not "prevent [the bill's] return[.]" Accordingly, the governor at least arguably had the right to veto it on January 2, 2007.

I don't know how the court case will come out, but it is not as clear cut as your commenters suggest.
1.9.2007 6:04pm
Steve:
Here, counting Sundays, the time ran out on January 2, 2007.

But if you're not going to take the adjournment into account, then you most certainly have to exclude Sundays.
1.9.2007 6:29pm
Ohio Lawyer:
But if you're not going to take the adjournment into account, then you most certainly have to exclude Sundays?

No.

I am not taking adjournment into account because adjournment only matters when it "prevents" the return of the vetoed bill. Here, adjournment did not prevent the return because the general assembly was in session at the end of the veto time.
1.9.2007 6:44pm
A.S.:
<i>The Ohio Senate adjourned December 26, according to its journal, and because it was the originating house it was the body whose adjournment prevented the return. The bill was presented to the governor on December 27. Whether Sundays are included or excluded, ten days after adjournment expired no later than Saturday, January 6. The only way to extend the ten days to January 8 is to start with the date of presentment and exclude Sundays. This strikes me as a far tougher case for the new governor to make since the constitutional text seems (to me, at least) pretty clearly to compute the time for vetoes in cases of adjournment from the date of adjournment and not from the date of presentment.</i>

Hmmm, this can't be right. Is there any limitation on the date on which the bill can be presented to the Governor after the date of adjournment? What if the governor wasn't presented the bill until January 9? Then time would have run out before the Governor even got the bill!

I would think that, in the phrase "within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state" means he gets 10 days after the adjournment ENDS, not after it BEGINS. The releant start date isn't the date the State Senate adjourns, but rather the date it comes back into session. That is the adjournment includes all the time that the relevant house was adjourned, so that "after the adjournment" means after all of the time that the relevant house was adjourned has elapsed.
1.9.2007 6:49pm
Steve:
I am not taking adjournment into account because adjournment only matters when it "prevents" the return of the vetoed bill. Here, adjournment did not prevent the return because the general assembly was in session at the end of the veto time.

...and since the return wasn't prevented, you're back to the first clause, which explicitly excludes Sundays from the computation.

The only part of the provision which arguably includes Sundays in the computation is the second part, which begins with the language "unless the general assembly by adjournment prevents its return; in which case..." Since the return hasn't been prevented, by your reasoning, you should stop reading.
1.9.2007 6:52pm
Charlie Hallinan (mail):
Because the General Assemby was back in session within ten days not counting Sundays, the adjournment did not "prevent [the bill's] return[.]" Accordingly, the governor at least arguably had the right to veto it on January 2, 2007.

In my earlier comment, I suggested that this was "presumably" the governor's theory, but based on second-hand reports of the press conference held by the Ohio Attorney General late this afternoon I think I was wrong. I also think it's a pretty weak theory.

The chief problem, it seems to me, is that it assumes that "the General Assembly" is a permanent on-going institution. That's inconsistent with the traditional way of thinking about legislative bodies. And, more importantly, it seems inconsistent with the Ohio Constitution, which refers to the sessions of "each General Assembly." (Ohio const. art. II, sec. 8.) "The General Assembly" (the 126th) that passed the bill in question, that is, is not "the General Assembly" (the 127th) to which the governor returned the bill. Rather, on January 2 and thereafter, the General Assembly that passed the bill no longer existed, so that it was impossible for the governor to return the bill to it. And the 126th Assembly's adjournment sine die on or before January 2 prevented the return of the bill after the date of adjournment, thereby triggering the adjournment-based computation of the time within which the veto had to occur.

It's beginning to look to me as though the governor's position is in fact closer to Steve's comment that the object of the adjournment-based timing is to afford the governor at least ten days from presentment and that it would be "contrary to the provision's intent for the Governor to wind up with LESS time due to an adjournment." It seems to me, though, that purposive or intent-based interpretation is least appropriate for constitutional provisions that involve numbers and mechanics. (To call to mind one classic example: The U.S. Constitution requires that the President be at least 35 years old, presumably with the purpose of enhancing the likelihood that holders of the office will have sufficient maturity and experience for the job. I don't know of anyone who thinks the requirement should be read to permit the swearing-in of a very mature thirty-year old or to prohibit service by immature and inexperienced fifty-year olds [fill in your own disfavored President's name here].)
1.9.2007 8:02pm
Steve:
It seems to me, though, that purposive or intent-based interpretation is least appropriate for constitutional provisions that involve numbers and mechanics.

I was probably wrong to use the word "intent," which is sort of a term of art. But I think there are two different ways to read the letter of the provision, and one of those ways strikes me as clearly contrary to its spirit, at least in the fact pattern under consideration.
1.9.2007 8:18pm
zooba:
Jake, this isn't Ejusdem generis vs. Expressio unius. There is no enumeration of specific things accompanied by a more generic term and therefore ejusdem generis does not apply.

This is really Expressio unius vs. Noscitur a sociis. It's Expressio unius, since we interpret the presence of "Sundays excepted" on the first part as implying that the word "day" normally includes Sundays (the expression of "Sundays excepted" implies the exclusion of Sunday not being a day). It's Noscitur a sociis because we would look to how days are counted in the first part to determine how to count days in the second part.

I always liked Expressio unius better because it's less ambiguous than Noscitur a sociis / In pari materia.
1.9.2007 8:21pm
ohio lawyer:
The chief problem, it seems to me, is that it assumes that "the General Assembly" is a permanent on-going institution. That's inconsistent with the traditional way of thinking about legislative bodies. And, more importantly, it seems inconsistent with the Ohio Constitution, which refers to the sessions of "each General Assembly." (Ohio const. art. II, sec. 8.) "The General Assembly" (the 126th) that passed the bill in question, that is, is not "the General Assembly" (the 127th) to which the governor returned the bill.

But Article 2 Section 16 only requires the governor to return the bill "to the house in which it originated," not to the same general assembly. What in the text of the constitution makes you think that the governor can't return a bill to a different general assembly than the one that passed it?

I'm basing my argument on textual analysis, not case law, so I admit I could be missing something.
1.9.2007 8:33pm
Charlie Hallinan (mail):
I would think that, in the phrase "within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state" means he gets 10 days after the adjournment ENDS, not after it BEGINS. The releant start date isn't the date the State Senate adjourns, but rather the date it comes back into session. That is the adjournment includes all the time that the relevant house was adjourned, so that "after the adjournment" means after all of the time that the relevant house was adjourned has elapsed.

As used in the provision, according to the Ohio Supreme Court, "adjournment" refers only to adjournments sine die at the end of a legislative session (and does not include adjournments -- recesses -- within a session). In the cases in which the provision applies, then, the adjournment will have only a beginning and not an end (or, more precisely, adjournment is an event, not a state). The legislature doesn't "come back into session" following such an adjournment; it is, rather, a new legislature that takes over the legislative power: "although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment." Anderson v. Dunn, 19 U.S. 204 (1821).

The risk that the legislative leadership would game the rule by adjourning and then deferring presentment until more than 10 days had passed following the adjournment is reduced (but not obviated) by the constitutional provision that any bill that has passed both houses "shall be presented forthwith to the governor for his approval." Ohio const. art. II, sec. 15(E). It's not clear to me how the obligation to present forthwith might be enforced (or even who has the obligation), but I wouldn't be surprised at a rule that tolled the time for veto in cases involving a breach of the obligation. That possibility isn't inconsistent, however, with the proposition that -- if the obligation to present forthwith is satisfied -- the time for veto begins with the date of adjournment (which cannot be more than a day or two before the presentment anyway if the the presentment is in fact made "forthwith" following passage).
1.9.2007 8:46pm
Charlie Hallinan (mail):
But Article 2 Section 16 only requires the governor to return the bill "to the house in which it originated," not to the same general assembly. What in the text of the constitution makes you think that the governor can't return a bill to a different general assembly than the one that passed it?

The "house in which [the bill] originated" exists only as a component of the General Assembly. (The legislative power is "vested in a general assembly consisting of a senate and house of representatives." Ohio const. art. II, sec. 1.) If the General Assembly ceases to exist upon adjournment, then so do the houses that comprise the Assembly. If a bill is "returned" to "a different general assembly than the one that passed it," it is necessarily being sent (but not "returned") to a different house as well. Or, at least, that's how I see it.
1.9.2007 9:37pm
Justin (mail):
All of these creative arguments and hair-splitting are unnecessary [so that] if one simply reads the provision as written: "ten days" means 10 days, not 10 days except Sunday. The plain meaning -- and a Republican majority on the Supreme Court will trump Strickland's veto.
1.9.2007 11:53pm
Visitor Again:
The exchanges above are fascinating even if they are about an arcane, technical procedural issue. They should give nonlawyers at least a glimpse of how legal issues arise and how lawyers approach them. They also illustrate that many minds are almost always better than one.

If I were one of the lawyers dealing with this issue, the first thing I'd do is read the comments to this post. No doubt the lawyers on the case will read them.
1.10.2007 12:46am
ohio lawyer:
The exchanges above are fascinating even if they are about an arcane, technical procedural issue. They should give nonlawyers at least a glimpse of how legal issues arise and how lawyers approach them. . . .

Any undergraduate thinking about becoming a lawyer should take poetry classes. Lawyers pick apart statutes and constitutional provisions the way English majors pick apart poems, and we use pretty much the same techniques.

The only difference is that poetry that's good enough to make it to an English class is almost always thoughtfully put together. By contrast, when reading statutes and state constitutional provision, it's often clear that the authors really didn't think too carefully about what they were writing.
1.10.2007 5:08am
JRL:

Actually, they could have been much more explicit -- they could have, and most likely would have, included the words "Sundays included" if that was their meaning.


Sundays included? Does that include Saturdays? What about Tuesdays? What about Holidays?


If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days, including Mondays, Tuesdays, Wednesdays, Thursdays, Fridays, Saturdays, and Sundays, after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state.
1.10.2007 9:22am
RV:
The risk that the legislative leadership would game the rule by adjourning and then deferring presentment until more than 10 days had passed following the adjournment is reduced (but not obviated) by the constitutional provision that any bill that has passed both houses "shall be presented forthwith to the governor for his approval."
Although if the two ten day provisions are in fact different (i.e. the first doesn't count Sundays while the second does) and the General Assembly can defer presentment, this still leaves the General Assembly with a lot of power to decrease the amount of time the governer has to review and veto a bill. Say the GA adjourns on a Wednseday the 1st, but doesn't present 'til Friday the 3rd. Under 10 days from presentment (not counting Sundays) the governer has until the 15th (10 days being Sa 4th, M 6th, T 7th, W 8th, R 9th, F 10th, Sa 11th, M 13th, T 14th, and W 15th). Under 10 days from adjournment (counting Sundays) he has only until the 11th (1st + 10 days). Did the drafters of the Constitution really mean to give the GA the power to nearly halve the amount of time the governer has to review and veto a bill? It seems more likely (though certainly not definite), that the second clause is meant to give the governer exactly the same amount of time as the first clause would if the GA had remained in session in that it assumes the GA will present to the governer no later than the day of adjournment and the ten days in both mean ten non-Sunday days.

Sundays included? Does that include Saturdays? What about Tuesdays? What about Holidays?
Holidays is an interesting question, but since the sentence doesn't address them or leave any question they should be counted with the possible exception of allowing until the next day if the time period expires on a holiday on which the relevant goverment office is closed. But your Tuesdays comment is just facetious. The sentence as drafted leaves no question regarding the counting of any days of the week except for Sunday, so that is the only day of the week about which clarification would be helpful. It would be clear (except for the expiring on a holiday issue) if the first time it read "within ten days, Sundays excepted," and the second time it read "within ten days, Sundays included" or to be extra lawyerly "within ten days, including but not limited to Sundays."
1.10.2007 10:12am
JRL:

The sentence as drafted leaves no question regarding the counting of any days of the week except for Sunday, so that is the only day of the week about which clarification would be helpful.



I dunno. There are plenty of commenters above that say Sundays means Sundays and Saturdays, as well as claiming that no mention of any day also means Sundays and Saturdays are excluded.
1.10.2007 10:20am
Parvenu:
Ohio lawyer writes:The only difference is that poetry that's good enough to make it to an English class is almost always thoughtfully put together. By contrast, when reading statutes and state constitutional provision, it's often clear that the authors really didn't think too carefully about what they were writing.Hmm. I was an English major, and I read a fair amount of poetry that was no more well put together than ERISA, and roughly as interesting a read as well.

*~*~*~*~*

As to the issue of whether Sundays are "days" in this case: it seems to be an untenable stretch of logic to suggest that the framers of the Ohio constitution were inclined to compel government business to be concluded on Sundays; those on this thread who have argued that Strickland could have forced the AG to get into the office on Sunday, and that that makes all the difference in the world, are pushing both the text and the history. If Strickland loses this case, it's probably going to be on the presentment-adjournment distinction; the subject of this post might therefore be somewhat misleading about what the critical issue is.
1.10.2007 12:25pm
RV:
There are plenty of commenters above that say Sundays means Sundays and Saturdays, as well as claiming that no mention of any day also means Sundays and Saturdays are excluded.
If nothing is mentioned in the document, then you have the question of whether 10 days means calendar days or business days. And earlier commentators have correctly pointed out that if there is no clarification in the document, we have rules such as the FRCPs which say that if it is less than 11 days, it means business days while if it is 11 or more it means calendar days. But this is just a default rule and is only turned to when the document you are looking at does not explicitly say what it means by days. Here, we are discussing a provision where there is clarification in the document itself, days means days excluding Sunday, so you don't need to turn to the default rules for the first clause at least. And if the second clause was also clear ("days exluding Sundays," "days including Sundays," "business days"), we wouldn't need it there either. If the first "Sundays excepted" applies to the definition of days for the whole sentence, again, no need to look at the default rules.

As for the argument that at the time of drafting, essentially Sunday was the only day off so nowadays we should interpret "Sunday" as "non-business day," that may be an argument for amendment, but it's a stretch to change the plain meaning of "days, Sundays excepted"
1.10.2007 12:46pm
David Chesler (mail) (www):
Unlike when I am wearing my lawyer hat, I don't e-mail my friends: "When I was at the store on Sunday, specifically the Target at Bailey's Crossroads, (hereinafter the "Store")..."

I don't even own a lawyer hat, but my words tend to have plain meanings. If somebody tells me "Yesterday when I went out to lunch I had pizza, but today when I go out to lunch I think I will have General Gau's chicken" I don't say "Wow, what kind of pizzeria sells Chinese food?"[*], I simply figure that "out to lunch" for yesterday referred to a pizzeria, but "out to lunch" today refers to a Chinese restaurant.

I have used "hereafter" in real life: my kids are at the age where they like to catch me in technical inaccuracies, so I have made statements like "From now on, when I say 'Get in the car' that includes whatever vehicle we are using that day, even if it is the mini-van which is admittedly not a sedan and is arguably not a car."

On the other hand, some explanatory exceptions are absolutely not universal. If on a Sunday I say "We can get lunch anywhere you want, except Chik-Fil-A because they are closed on Sundays" that does not mean if we are at the mall food court on a Saturday and I say "We can get lunch anywhere you want" it excludes Chik-Fil-A -- they are open on Saturdays. (On the other hand, "Anyplace" is understood to be "Anyplace in this mall food court" -- if they suggest someplace else I either remind them of that, or fall back to "OK, I made a offer I can't fulfill, the new offer is anyplace in this food court or nothing because I'm the Dad.")

[*]Answer: It's a Jewish neighborhood.
1.10.2007 12:55pm
RV:
If on a Sunday I say "We can get lunch anywhere you want, except Chik-Fil-A because they are closed on Sundays" that does not mean if we are at the mall food court on a Saturday and I say "We can get lunch anywhere you want" it excludes Chik-Fil-A -- they are open on Saturdays.
There are two problems with that analogy. First, here we have a single sentence, not two statemtents far apart in time and place. Second, your example specifically states that the reason no Chik-Fil-A is because it is closed on Sunday, so it explicitly doesn't apply to Saturday. If you had said "except Chik-Fil-A because I hate it" it would very likely apply the next time you are talking about where to eat, though you can't necessarily expect your friends to remember it six days later. In all likelihood the "except Sunday" here implicitly carries the reasoning "because we don't work on Sundays it being a day of rest" so it would be applicable to the second part, too.
1.10.2007 2:17pm
Justin (mail):
This is an easy case, btw. The "adjournment" portion here DOESN'T APPLY. Read it carefully, as it says "the general assembly by adjournment prevents its return."

Thus, unless you read "adjournment" to mean a period (which you obviously should) and "prevents its return" as to mean the Government does not even need to consider the bill during adjournment (which is a stretch), then the adjournment has not "prevent[ed] its return."

Thus the first part applies: If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it.

Well, under the plain reading, Sundays are "excepted" from the "ten days." While there are interpretive ways around that, to claim that Sundays are only excepted if Sunday is the "tenth day," those arguments are not originalist, nor textualist. They are policy-oriented, or structural, and even then there are policy and structural arguments for both sides.

Finally, neither FRCP (which does not apply to statutory interpretation of State Constitutions) nor Ohio Revised Code Sec. 1.14, which is statutory, can be used to interpret the Ohio Constitution. If it did, make sure not count the first day, New Years Day, and PERHAPS Jan 2nd, in honor of Gerald Ford (recommended as a President), because THOSE DAYS DO NOT COUNT AS DAYS UNDER OHIO REV CODE SEC 1.14, which is used to determine what a DAY is.


As such, 28, 29, 30, 31, 2, 3, 4, 5, 6, JANUARY 7, 2007 would be day 10. As January 7th is a Sunday, then

So, even if you used EITHER the FRCP OR Ohio Rev Code, you end up with a ruling in favor of the Governor.

Furthermore, the idea that the second reading failed to include "Sundays" because there is something different about adjournment vs presentment is absurd. Had the second part applied, then its pretty obvious that "Sundays excepted" would apply to the extent it applies in the first part. See the Danville case cited above).

That being said, the Ohio Supreme Court is perhaps the most corrupt Supreme Court in America, and is owned by the Ohio Chamber of Commerce.

Even the Wall Street Journal Law Blog Showed Some Concern.

As such, I expect the Ohio Supreme Court to show that its up to the task of proving how good of an investment it is, and find the veto untimely.
1.10.2007 2:41pm
Bpbatista (mail):
Most corrupt Supreme Court in America? Get a grip. I think that honor belong to either Washington or Florida. The article you site does not discuss the underlying merits of the cases at issue -- any chance that the judges got it right? Moreover, the NYTimes seems more upset about the source of the alleged corruption (business) rather than corruption for its own sake. In the NYTimes eyes, a corrupt judiciary owned by the unions and trial lawyers would be just fine. In the past, the Ohio Supreme Court was owned by corrupt liberals (witness its past decisions on school funding and tort reform). Now that these liberals no longer run the show, they are engaged in a classic case of projection.
1.10.2007 3:13pm
hugh:
The Ohio Constitution appears to provide two different deadlines for vetoing a bill based on whether the legislature is in session or has adjourned. The two periods are not identical and this would suggest that the absence of the "Sundays excepted" language may be significant.

The language of the Ohio Constitution reads as follows:

If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state. The governor shall file with the secretary of state every bill not returned by him to the house of origin that becomes law without his signature.

If the legislature is in session, then the bill becomes law unless the governor vetoes it within ten days, Sundays excepted, after the bill is presented to the governor.

However, if the legislature adjourns, the bill becomes law unless the governor vetoes it within ten days after adjournment. No exception for Sundays is provided.

According to news reports, the legislature adjourned on Tuesday, December 26, 2006. So the period for vetoing the bill began running on the Wednesday the 27th.

Day 1: Wednesday 12/27
Day 2: Thursday 12/28
Day 3: Friday 12/29
Day 4: Saturday 12/30
Day 5: Sunday 12/31
Day 6: Monday 1/1
Day 7: Tuesday 1/2
Day 8: Wednesday 1/3
Day 9: Thursday 1/4
Day 10: Friday 1/5
Day 11: Saturday 1/6
Day 12: Sunday 1/7
Day 13: Monday 1/8

Even if we leave out the intervening Sundays, Governor Strickland's veto was too late:

Day 1: Wednesday 12/27
Day 2: Thursday 12/28
Day 3: Friday 12/29
Day 4: Saturday 12/30
Sunday 12/31
Day 5: Monday 1/1
Day 6: Tuesday 1/2
Day 7: Wednesday 1/3
Day 8: Thursday 1/4
Day 9: Friday 1/5
Day 10: Saturday 1/6
Day 11: Sunday 1/7
Day 12: Monday 1/8

Thus, if we start the clock running on the day after the legislature adjourns, the tenth day "after such adjournment" was Saturday the 7th.
1.10.2007 3:40pm
David Chesler (mail) (www):
here we have a single sentence

Assume it is the Sunday before a holiday.
"We can go to the mall today and eat anywhere in the food court except Chik-Fil-A, or we can go the mall tomorrow and eat anywhere in the food court."

Is the average listener's reaction going to be "We can't eat at Chik-Fil-A tomorrow either, because 'anywhere in the food court' excludes Chik-Fil-A, probably because he hates it" or is it going to be "Because he described the limitations for today and tomorrow differently, we have a wider choice if we go tomorrow."

I think it would be the first interpretation, while it would be the second interpretation if I'd said "Today or tomorrow we can go to the food court and eat anywhere except Chik-Fil-A."
1.10.2007 4:00pm
Justin (mail):
Hugh, your legal analysis is off for a variety of reasons, all of which are discussed in my post. Not to mention you leave out the second Sunday in your second theory.

Under your theory, despite the language of the bill, adjournment can only be used to thwart the veto power, rather than preserve it. This reading is clearly incorrect.
1.10.2007 4:37pm
RV:
"We can go to the mall today and eat anywhere in the food court except Chik-Fil-A, or we can go the mall tomorrow and eat anywhere in the food court."
As your analysis shows, it turns on how the listener interprets the restriction. Is it based on dislike (which won't be different on a new day) or the availability of the restaurant (which will change on a new day). In the statute Sunday is excluded and I think most people would treat excluding Sunday as being based on Sunday's special status as a day that you don't work, which is just as applicable to the second part of the sentence. It's like saying "I'll meet you for lunch this week at Chik-fil-A any time this week, except Sunday, or any time next week."
1.10.2007 5:17pm
RV:
...Unless you are a Westerner or other person from non Chik-fil-A territory who doesn't know that they are all closed on Sunday because of the owner's religious convictions. Then you would probably assume that the speaker just had other plans that particular Sunday.
1.10.2007 5:19pm
hugh:
Ten days after presentment, Sundays excluded or ten days after adjournment, that is the question. Whether 'tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take arms against a sea of troubles, and by opposing end them?


Hugh, your legal analysis is off for a variety of reasons, all of which are discussed in my post. Not to mention you leave out the second Sunday in your second theory.


Really? I beg to differ. I think that several other writers above arrived at the same conclusion that I did. I leave out the second Sunday because it was day 11.

As is mentioned above, the adjournment of the 126th General Assembly on Dec. 26th was its final action. It will be an interesting legal exercise to see whether a vetoed bill can be "returned" to a subsequent General Assembly.


Under your theory, despite the language of the bill, adjournment can only be used to thwart the veto power, rather than preserve it. This reading is clearly incorrect.


I love it when someone says "clearly." Usually, you only see it when the issue under discussion is not clear. I tend to be a nit picker when it comes to interpretation of statutory or constitutional terms...but you have to be.

We are not talking about a "bill." We are talking about a provision of a state constitution. And you can forget about the FRCP or the Ohio Rules...this is not a filing in the Court of Common Pleas.


Furthermore, the idea that the second reading failed to include "Sundays" because there is something different about adjournment vs presentment is absurd. Had the second part applied, then its pretty obvious that "Sundays excepted" would apply to the extent it applies in the first part. See the Danville case cited above).


Oh oh oh...one case from 1888 discussing the interpretation of a federal statute. I would have a hard time keeping a straight face making that in front of a court. There is a reason why statutory language (and most legal writing) is repetitive...as someone wisely discussed above.

Statutory and constitutional terms are different from ordinary English. Try reading Title 26 USC Sec. 61. "Gross income is income from whatever source derived." You might say that it is absurd to use the term "income" to describe itself. Except that Sec. 61 is creating a definition... an icon if you will...that can be used in subsequent code sections. "Gross income" becomes short hand for "income from whatever source derived" and the body of law interpreting that term.
1.10.2007 8:24pm
hugh:

That being said, the Ohio Supreme Court is perhaps the most corrupt Supreme Court in America, and is owned by the Ohio Chamber of Commerce.


If you are an attorney, Justin, you need to be more careful. I seem to recall that it is unethical for an attorney to make disparaging remarks about the bench.
1.10.2007 8:33pm
James Dillon (mail):

If you are an attorney, Justin, you need to be more careful. I seem to recall that it is unethical for an attorney to make disparaging remarks about the bench.

Really? That seems like a big First Amendment problem, in this context, at least. It seems reasonable that an attorney couldn't ethically make such remarks in court, but restraining criticism of a governmental organization by a private citizen outside of the courtroom? How could that possibly be constitutional?
1.10.2007 9:58pm
Justin (mail):
hugh, i'd try to respond to your argument, but it makes no sense. I get that you think I'm dumb, but perhaps I'm so dumb that maybe you have to explain yourself. Are you saying the approach to figuring out what the Ohio drafters meant way back when is to look to cases today? That would be unusual, no?

I'll throw out the FRCP and Ohio rule argument, not because you indicate any comprehension of it (its inapplicability has nothing to do with court procedure), but because I take the position that its irrelevant too (under structural grounds).

But you complain that I use the word clear without actually explaining why its not clear? Why on earth would the statute create an exception to a general rule for the reasoning:

"unless the general assembly by adjournment prevents its return"

and then, in the exception, make it HARDER for the Governor, rather than easier?

In other words, if he can return it properly under the first clause, why on earth would the second clause even apply?
1.10.2007 10:48pm
hugh:
Justin, I do not think you are dumb. I was being a bit rude and I apologize.

I think that we are all having fun writing at a blog. Some of the writers here are brilliant (or very experienced in the field) and can write about these issues in depth with little preparation. The rest of us are making quick comments based on our experience in other fields.

So, write away! There are no bad arguments. They make us all think. And sometimes a fresh perspective on black letter law opens the door for us to reconsider that rule and create new law.

As for the comment by a writer about the ethical rule about making disparaging remarks about the bench, I agree there are serious first amendment problems with that. I probably should find the specific cite and see about having a post just to discuss that issue.
1.11.2007 5:35am
Justin (mail):
I appreciate the apology but otherwise note that was nonresponsive.
1.11.2007 10:02am