Today the Ohio Supreme Court issued its opinion in the "Sunday Suit," siding against Ohio Governor Ted Strickland. The suit arose out of a dispute over whether Strickland could still veto a bill on his first day in office that had been passed at the end of the legislature's term, and that his predecessor, Bob Taft, had intended to let become law without his signature. Strickland said "yes," and purportedly vetoed the bill. The leadership of the state legislature cried foul, and filed suit. By a vote of 5-2, the Ohio Supreme Court said "no," concluding the bill had become a law by the time Strickland sought to veto it.
As I chronicled in these posts, the controversy centered on whether the clock had run on the Governor's opportunity to veto the bill. The Ohio Constitution specifies that bills become law within ten days if not vetoed by the Governor. But how do we know when the ten days is up? Here is the relevant language:
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.One issue was whether Sundays should count as days after the legislature adjourns for the end of the session. Sundays are explicitly excepted in the first clause, but not in the second, leading some to argue that they should count as days when counting from adjournment, but not when counting from presentment.
While the Sunday issue was the focus of earlier coverage (and my blog posts), it was not the basis for the Court's decision. Instead, the majority opinion by Justice Cupp, himself a former state legislator, concluded that ten day period expired whether or not Sundays were counted, because the clock began running on December 26, when the legislature adjourned, rather than on December 27, when the bill was presented to the Governor. This means the ten day period expired no later than Saturday, January 6. So, when Strickland took office on January 8, it was too late.
One of the dissents was written by Justice Pfeifer, easily the all-Republican Court's most liberal member, was particularly pointed, accusing the majority of "a new level of judicial activism — a wholesale rewriting of the Ohio Constitution." Justice Pfeifer, writing only for himself, wrote:
Nothing in the law supports the majority opinion’s conclusion. Nothing in the majority opinion would convince an objective reader that the conclusion is just or in any way supported by case law, statutory law, learned treatises, or the plain language of Section 16, Article II of the Ohio Constitution.While Justice Pfeifer thought "nothing in the law" supported the majority's conclusion, many of the other Justices (including the other dissenter, Justice Lanzinger) joined opinions suggesting this was a difficult decision. Two of the concurring justices — Justice Lundberg Stratton who joined the majority opinion and Justice O'Donnell who only concurred in the judgment — suggested an alternative basis for the holding of the Court. They suggested that once Governor Taft filed the bill with the Secretary of State, the Governor's authority over the bill terminated, and the bill could not be recalled by the successive Governor for a subsequent veto.Why is the majority deciding this way today? I do not know. In the ultimate display of result-oriented justice, its reasoning shifts. From the day of oral argument, the unfolding of the majority opinion has been the story of a result in search of a justification and an author.
Is the majority troubled by Governor Strickland identifying a loophole and bursting through it? Whether one considers Governor Strickland’s veto gambit as clever or devious, whether one believes that vetoing legislation when the preceding governor has made it known that he wishes the legislation to become law without his signature is impertinent or tactical, the fact remains that his decision was hardball politics. Brilliant or backhanded, it was politics. And most importantly, it was constitutional. . . .
Controversies like this are to be expected with shifts in the balance of power. The battles that ensue from those shifts are best fought by politicians. Today this court wades into politics and overreacts. At the end of the day, real damage has been done to the Ohio Constitution. That the damage is inflicted by this court is ironic and dispiriting.
Justice O'Connor also concurred separately to respond specifically to Justice Pfeifer's insinuation that the majority's decision was motivated by political considerations. Her opinion also includes some strong language (for a judicial opinion) and alludes to specifics about the Court's consideration of the case.
When judges and justices engage in robust discussion in furtherance of the search for consensus, we are rightfully expected by the people who elect us to act with respect and courtesy. In turn, we have often called upon attorneys to practice their profession with civility. Although civility is an amorphous concept in legal arenas, at a minimum it suggests proceeding without insult and ad hominem attacks when discussing those who hold an opposite view. Unfortunately, Justice Pfeifer disregards the same civility he once espoused in favor of a dissent filled with sarcastic scurrility.Based on my reading of the Ohio Constitution, I am inclined to believe both arguments supporting the majority are correct. These arguments seem to have a firmer grounding in the relevant text than Pfeifer's alternative read. I also believe that the "Sundays" argument that the majority failed to reach is plausible as well. I can envision many reasons why Sundays would not count in the normal course of business, but would count when the legislature adjourns for the year. Among other things, it would make controversies of the present sort less likely. In the end, I find it quite incongruous that a newly elected governor could veto legislation enacted the prior year that the then-sitting governor intended to let become a law, and it seems to me that the text of the Ohio Constitution is in accord with this view.The dissent states that our holding in this case was reached in a result-driven process that was started on the day the case was argued and that has been fueled by political considerations since then. Nothing could be further from the truth.
As the dissenter knows, our internal debate on this matter has been extensive. The outcome in this case was not preordained.
As the dissenter knows, I, and at least one other member of this court, gave careful consideration to a former draft of an opinion he circulated more than ten weeks ago, notwithstanding its vitriolic invective. The fact that five separate opinions have been written on the merits of the claims raised here suggests, quite strongly, that the members of this court are not of one mind – or persuasion. . . .
Each justice takes an oath to fulfill that duty to the best of his or her ability. To wrongly call into question the integrity of justices with opposing views maligns our personal and professional reputations, including that of the dissenting justice. Most offensively, however, it undermines the integrity of the court itself.
To disparage the members of the court with the dishonest suggestion of political expedience is disheartening personally, but more important, it is a professional disservice to the parties and institutions involved and to the people of Ohio. Justice Pfeifer’s dissent is incorrect insofar as it states that real damage has been done to the Ohio Constitution. More correctly, the real damage has been done to the perception of the judiciary’s integrity. I am left to wonder if he understands that it is his words that have inflicted the “ironic and dispiriting” damage.
Here is some preliminary coverage of the decision in the Cleveland Plain Dealer and Columbus Dispatch. Hat tip: Right Angle Blog.
Don't you find it scary that the legislature could negate the possibility of a veto by adjourning, waiting ten days, and then "presenting" the bill? As Justice Pfeifer's dissent notes, that's the logical conclusion of the majority's opinion. I also don't think that the majority's "forthwith" argument is very persuasive. While I think Pfeifer's dissent is a little over-the-top, it does expose some serious flaws in the majority's opinion. And I think Justice Lanzinger's reading -- in which the additional ten days pursuant to adjournment contemplates that the G.A. has already presented the bill to the governor -- is a better way to avoid the possibly dire impact of the majority's conclusion.
That said, I tend to agree with Justice Stratton and O'Donnell. Once Taft filed the bill with the Secretary of State's office, he performed his constitutional duty and ended the matter.
Interestingly, Professor chose not to deal with the actual wording of the Constitution. I read it several times, along with the majority opinion, concurrences, and dissents. I completely fail to see ANY logic in the decision which interprets the Constitution to provide the Assembly the power to evade the veto altogether. As Justice Pfeiffer points out, all the Assembly needs to do is to adjourn, and present the bill to Governor 10 days after the adjournment! Presto! Where's the logic in this?
The majority simply ignores two cases from other jurisdiction directly on point which reach the opposite result than the majority.
I see NOTHING but politics in this decision. Absolutely nothing.
I agree with you. I think once Taft filed the bill, it became law. This would be the good and reasonable rationale for the opinion; instead the majority chose a completely absurd way which exposes it for what is: a result-driven majority.
I agree with Prof. Adler's comment above, but not his reading of the Ohio Constitution. I think it provides for the possibility of an incongruous result. However, I think that Taft filing the bill may have ended matters.
I am pretty sure that Taft is a Republican.
And I hasten to add, I respect Professor Adler; it's just very not surprising to me that he supports a decision that went against a Democratic governor. ;)
I think once Taft filed the bill, it became law. This would be the good and reasonable rationale for the opinion; instead the majority chose a completely absurd way which exposes it for what is: a result-driven majority.
I am not sure I understand this. Where is the partisan advantage in reaching a result via a rationale you find unreasonable when one that you concede to be reasonable reaches the same result? Surely it would be in a politically-motivated court's interest for the reasoning not to appear strained. I think we need a different explanation.
If Taft had 'intended' to make the bill a law, his signature would have removed all doubt.
I agree that the Stratton and O'Donnell opinions take care of this case easily. But their rationale is, in many respects, more structural than textual. I suspect this is why their view did not attract a majority. Also, what if Taft had not filed the bill and had, instead, just left it on his desk assuming the ten day period would run? Their rationale would not result the question. A failure to file the bill would violate the requirements of Section 16, which obligates the Governor to file bills that will become law without his signature, but I am still inclined to think the subsequent veto would be invalid if more than 10 days from adjournment.
I read the plain text of Section 16 to create a 10 day window from presentment for the Governor to return the bill, and a 10 day window from adjournment if the bill cannot be returned due to adjournment. As written, it is one or the other. It may have made more sense to draft the provision otherwise, but that is not how it was done. There is no requirement that all Constitutional provisions operate optimally in extreme circumstances so as to avoid any and all potentially incongruous results in situations that have not yet arisen, and might not ever arise.
Justice Pfeifer's scenario of an underhanded legislature is worrisome, but it is not enough to carry the day in my view. First, in the case at hand, the legislature did not seek to circumvent a veto. Rather, the legislature passed a bill with the understanding that the then-sitting Governor (Taft) retained the power to veto it. He didn't, and the legislature had every reason to expect the bill would then become law.
Second, Constitutions often contain provisions that, when read literally, can be abused by those who do not act in good faith, but this does not justify abandoning the text. Whatever Pfeifer says about the common understanding of the legislature, it is not what the text says.
I am also not sure that Justice Pfeifer's scenario would enable a legislature to circumvent a veto. A modern legislature (Section 16 was amended in 1973) cannot pass legislation without the Governor's knowledge. (Indeed, the Constitution requires that legislative sections be public.) So, if the legislature adjourned and failed to present the bill, the Governor would be aware of it (particularly of any bill passed without a veto-proof majority -- the only sort of bill that could induce this scenario). Why, in this case, couldn't the Governor simply file his objections within ten days of the adjournment? He would not be able to file the official, presented copy of the bill, but would that be fact control the outcome? I am not convinced, and I don't see anything in the Ohio Constitution that would prevent the Courts from upholding a veto on this basis.
I should also add that it is a bit odd for Justice Pfeifer to hurl accusations of result-oriented judging. On the current court, Justice Pfeifer is more likely than any other Justice to choose what he sees as a "just" result over that result compelled by the text.
Markusha -- On point decisions from other jurisdictions are nothing more than potentially persuasive authority. Also, FWIW, I'm probably more anti-Taft than I am anti-Strickland.
JHA
We know what Taft intended because a) he said so at the time, and b) he filed the bill without his signature with the Secretary of State as the Constitution requires. Taft apparently liked some portions of the bill and disliked others, so he didn't want to veto it, but did not want to put his signature on it either. A profile in courage, he was.
JHA
You'll certainly get no argument from me about that. That's one of the reasons why it's so difficult for me to actually credit him with his dissent.
The Ohio Constitution specifically provides for bills to become law without the signature of the Governor, and calls upon the Governor to file such bills with the Secretary of State, as Taft did. I agree he could (should) have signed the bill, but under the Ohio Constitution, that was not his only option.
JHA
I'd always thought the sticking point on this was that the government changed hands -- it never made sense that the new governor could use a veto to undo a decision by the last governor. All the counting of Sundays was really confusing and seemed pointless to me. On those grounds alone I like the O'Donnell/Stratton explanation best.
And my opinion of Justice Pfeifer continues to deteriorate. I felt, in reading his opinion, like I was reading a tract on why he's the bestest Ohio Supreme Court justice ever, and don't forget to vote for him when he's up for election next because all those other guys are losers!! Glech. Such a pity there are four more years before my next shot at voting against him comes up...
(This is a good argument against electing Supreme Court justices: all it seems to do is create justices I can't stand. Just like with our governors and senators, come to think of it...)
It is fitting that the Taft Administration ends with the gutless governor failing to take a stance on a piece of legislation, and leaving it to cause a mess for his successor.
Do I follow correctly that Taft had fewer than ten days left in office, Sundays excepted, from when the bill passed? Then he shoulda signed it if he wanted it to become law. I've no idea which day to start counting the ten days; perhaps a pattern has emerged in the last 150 years of Ohio lawmaking? No? If the legislature really meant "including Sundays" in the same sentence that it meant "not including Sundays," it would have written the words "including Sundays," Adler's imagination notwithstanding. The idea that submitting it to the Sec State gets you out of the 10-day rule also looks very imaginative. What does the 10-day provision do, under this intepretation? Just askin'.
Not necessarily. One of the few things that I remember from my Ohio civics class is that the governor did not always have veto power. If I remember right, the current Ohio constitution was amended (and reamended) to provide the governor with the veto power that he has today.
Therefore, some things about the veto provision that seem senseless (or even contradictory) might actually be reflections the process by which the Ohio constitution was changed to provide the governor with veto power.
The pertinent provision is quoted at ¶35 of the majority opinion:
Here, there is no question that the general assembly adjourned on December 26, 2006 and that regardless of how one treats Sundays, the 10 day adjournment period expired at the latest on Saturday January 6, 2007.
The inconsistency arises from the Constitutional provision regarding the governor's veto power that runs 10 days from presentment of the bill to the governor. As the dissent correctly points out, a clever General Assembly could conceivably avoid a veto by delaying presentment of a bill for 10 days and, under the words of the Constitution, that bill would become law before the Governor's 10 day veto period even started to run. Wisely, the majority leaves that issue for resolution down the road, though dicta regarding a potential judicial solution if a bill were not presented "forthwith" provides fodder for the dissent. I suppose an alert Governor should be aware of what the legislature was up to and should a couple of days pass following adjournment without presentment of a bill the governor is itching to veto, the governor could seek an order compeling presentation post haste. Failing that, the Constitution's language is plain and clear: For whatever motivation, the majority declined to rewrite it. I see that as a good thing.
Dang! Don't let me near laws like that! So, what is the meaning of "him" when who the governor is is not the who the governor was? It does seem clear enough that the ten days (+/-) runs from adjournment, so I don't get that part of the controversy. Thanks for emphasizing that bit, economoneoconiman.
The majority expressly addressed the Idaho and Illinois cases in paragraph 49, and distinguished them on the basis that those States had no constitutional language requiring delivery "forthwith," so in those States the problem of running out the clock was real, as the courts there could not grant relief by forcing delivery if the legislature stalled. Further, the Ohio Supreme Court majority pointed out, in parentheticals, that both the Idaho and Illinois decisions pointed out this fact, thus showing that those courts' decisions were made in light of that fact.
Markusha, perhaps you might not find this distinction persuasive, but it is surely inaccurate to say that the majority "completely ignores" the cases when it cites them and distinguishes them.
jfdf
Lanzinger's view is that the adjournment clause is not even triggered with a post-presentment adjournment, based on her view of the condition precedent in the "unless" that starts the clause. That clause says "unless the general assembly by adjournment prevents its return," and in her view, an adjournment that occurs pre-presentment is not an adjournment that prevents the return.
I disagree with Lanzinger because, as a logical matter, if the Gov. tried to veto the bill and "return" it to the GA, he would not be able to. Why? Because they adjourned. Sure, they did that a day ago, before the presentment, but it's still the fact that they have adjourned that is the barrier to return.
The strongest argument for the Gov. side here is that the majority reading threatens, in theory, to run out the clock, and that is a bad policy result. But to make that enough for decision requires a few other steps in the analysis, and while those other steps may be debatable, they're not enough to make the decision "clearly" wrong.
But in any case, whether Lanzinger is right or wrong, her view was based on the idea that the "unless" condition was not triggered, not on the idea that adjournment was some ongoing process that ended upon re-convening.
Moreover, one of the cardinal rules regarding stautory construction is that words and phrases can not be viewed in isolation but depend upon the context in which they are used. The clause is clearly intended to extend and not shorten the time period for which a Govenor has to return the bill:
"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 general assembly can not "prevent the return" of a bill without first presenting the bill to the govenor.