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.