A lot is being said, including in THE PLAIN DEALER and THE COLUMBUS DISPATCH, about the odd Ohio Supreme Court ruling last Friday permitting a referendum on AmSub.S.B. No 117. Now that the holiday is over let's settle down and look at the high Court's rationale and the dissent. This analysis is derived from the Court's 15-page opinion.
The ruling was odd and unexpected because, as the OH Supreme Court's opinion stated in State ex rel Ohio Gen. Assembly v. Brunner, ____ Ohio St.3d ________, 2007-Ohio-3780, ___ N.E.2d____("Brunner"), the opposition in the original filing "did not request a stay of the effective date of the law to allow for circulation of referendum petitions."
When OH Secretary of State Jennifer Brunner filed her request for a clarification if the time for a referendum had passed, there was an outcry that she and/or all the amicus briefs should have filed this request before the Court heard oral arguments on May 1st. Therefore, this decision last Friday seemed to come out of left field. Few expected it.
Well, here is what the majority - 4 to 3 - gives as the rationale for its ruling. "Brunner was a unique case, both factually and legally." There is presented in the opinion a history of contrary actions by two sets of governors and two sets of secretaries of state.
Then, there is a defaulting to the OH constitution. "While we are cognizant of these concerns and sought to definitively resolve this matter in Brunner, we cannot simply brush aside the powers specifically reserved by the citizens of this state in the Constitution, regardless of whether these concerns were raised in the initial suit by the named parties. The simple fact remains that in this case, citizens were not put on notice that Am.Sub.S.B. No. 117 was a valid law subject to referendum until August 1, 2007. In pursuing the proper resolution of the constitutional issue before us, we unintentionally deprived the citizens of the right to referendum that they would have enjoyed were it not for the unavoidable delays associated with judicial review. This result is unacceptable."
Thus, Brunner et al. are given 90 days from August 1st to obtain enough signatures on a petition in order to have a referendum for voters. That referendum wouldn't appear on the ballot until the 2008 election.
Justice J. Cupp penned a strong dissent. The Justice notes that this ruling "inserts into the Ohio Constitution what is, in effect, a retroactive stay: a remedy that is previously unknown to the law. " Justice Cupp adds that there are other ways available to citizens of OH to "challenge the merits of the public policy within this law without an extended referendum period." Those mechanisms include "both direct contact to sway members of the General Assembly to revise or repeal the now-existing law and the right of initiative."
Justice Cupp continues, "Additionally, the Ohio Constitution provides for the right of citizens to initiate a new law, which may include the revision or repeal of an existing law, by citizen petition to the General Assembly, and to force a statewide vote if the assembly fails to satisfactorily respond."
Justice J. O'Donnell concurs with Justice Cupp's dissent. This Justice adds, "I write separately to emphasize that, in my view, the majority opinion is advisory in nature and grants relief in derogation of the Ohio Constitution."
That reasoning is so because, Justice O'Donnell points out, "The secretary [Jennifer Brunner] does not allege, however, that any petitions for referendum have been filed in her office concerning Am.Sub.S.B. No. 117. As there is no actual referendum petition before her, any decision rendered by this court with respect to the possibility of such a filing is wholly advisory."
Justice J. Pfeifer dissented only as to when the clock starts running. This Justice holds that the clock should start running last Friday vs. August 1st.
Copy of Opinion available free. Please contact Mgenova981@aol.com.