Sound Constitutional Interpretation or Political Reality? A Case Study of State ex rel. Ohio General Assembly v. Brunner

• Author: Kyana Darner
• Position: Capital University Law School, J.D. 2009
• Pages: 859-887

SOUND CONSTITUTIONAL INTERPRETATION OR

POLITICAL REALITY? A CASE STUDY OF STATE EX

REL. OHIO GENERAL ASSEMBLY V. BRUNNER

BY KYANA DARNER

I. INTRODUCTION

In State ex rel. Ohio General Assembly v. Brunn er,1 the Ohio Supreme

Court was called upon to determine whether the then-sitt ing Governor

exceeded his authority by attemptin g to exerci se his v eto power ov er

Amended Substitute Senate Bill 117 (Senate Bill 117).2 This case study

analyzes the court’s answer to that question.

Articles II, III, and IV of the Ohio Cons titution set forth the p owers

and responsibilities of the legislative, executive, and judicial branches of

the state’s government.3 The do ctrine of separation o f powers is implici tly

embedded in the framework of th e Ohio Constitu tion which defines “the

substance and scope of powers granted to the th ree branches o f state

government.”4 Each in dividual branch of gov ernment has the rig ht to

exercise its constitutional duties without fear o f interference from the other

branches.5 This equil ibrium of independ ence and integrity b ecomes

imbalanced wh en one branch of government exc eeds the scope of it s

authority.

On January 8, 2007, Ohio Governor Ted Strickland att empted to veto a

bill that was filed with the Ohio Secretary o f State’s Offic e by outgoin g

Governor Bob T aft before he left office .6 What followed was a po litical

_______________________________________________________

Copyright © 2009, Kyana D arner

* Capital Univ ersity Law School, J.D. 2009. M.A. Th e Ohio State University. B.A.

The Ohio State University. I wou ld lik e to thank former Ohio Supreme Court Justice

Andrew Douglas for giving up his valuable time to assist me on this project.

1 872 N.E.2d 912 (Ohio 200 7) [hereinafter Brunner I].

2 Id. at 915.

3 OHIO CONST. arts. II–IV.

4 S. Euclid v. Jemison, 503 N.E .2d 136, 138 (Ohio 1986) (citations omitt ed).

5 State ex rel. Dann v. Taft, 84 8 N.E.2d 472, 484 (Ohio 2006) (footno te omitted).

6 For more than a dozen year s before 2006, Republicans dominated st ate government in

Ohio—serving as Go vernor and Lieutenant Governor, and holding most of the statewide

offices (e.g., Attorney General, Auditor, Secretary o f State, and Treasurer), the General

Assembly (Senate and House), and the m ajority of the seats on the Ohio Supreme Court.

(continued)

860 CAPITAL UNIV ERSITY LAW REVIEW [37:859

battle between the Republi can-dominated General Assembly’s leadership

and the Demo cratic state wide officehold ers over the scope of the executiv e

branch’s auth ority in th e legislative process and the questi on of when a bill

becomes a la w. The Rep ublican-contro lled state su preme court invalidated

Governor Strickland’s atte mpted v eto b y ho lding that the Governor’s ten-

day cons ideration period fo r action under article II, sectio n 16 of the Ohio

Constitution (secti on 16),7 expired before Stricklan d assumed office on

January 8, 2007. 8

In t his case, th e sep aration of p ower between the executive and

legislative branches was challeng ed the moment Governor Stricklan d

stepped into office and requested Senate Bil l 117’s return from the

Secretary of State. The imbalance of power continued when the court

validated the General Assembly’s atte mpt t o us urp t he Governor’s role in

the legisl ative process. By analyzing the question of when the Governo r’s

ten-day consideration period commences, the court opted to analyze the

issue as one of first impression9 instead o f utilizing a logical approach—

grounded in precedent—as employ ed in the concurrences of Justices

Lundberg Stratton and O’Donnell.10 This decision disturbed the

equilibrium o f divided po wers that, not surprisingly , resulted i n subsequent

litigation less than a month later when the court was asked to clarify its

decision as to exact ly when Senate Bill 117 had become law fo r purp oses

of the referendum process.11

JENNIFER BRUNNER, OHIO SEC’Y OF STATE, O FFICIAL ROSTER OF FEDERAL, STATE AND

COUNTY OFFICERS 2007-2008 319–27 (2008); MICHAEL F. CURTIN & JULIA BARRY BELL,

THE OHIO POLITICS ALMANAC 70, 76–77 (2d ed. 2006). In the 2006 election, Democrat Ted

Strickland led a ticket that won five of the statewide offices . BRUNNER, supra, at 320, 322,

324, 326–2 7. Republicans retained control of the Supreme Court of Ohio and the G eneral

Assembly, alth ough their margin of control in the House w as substantially weaken ed. See

Ohio Business Votes.com, Ohio Supreme Court Justices,

http://www.ohiobusinessvo tes.org/ court/justices.asp (last visited May 7, 200 9).

7 OHIO CONST. art. II, § 16.

8 State ex rel. Ohio Gen. Assemb ly v. Brunner, 872 N.E.2d 912, 921 (Ohio 2007).

9 Id. at 915.

10 See id. at 926– 27 (Lundberg Stratton, J., concurring); id. at 931–33 (O’Don nell, J.,

concurring).

11 State ex rel. Oh io Gen. Assembly v. Brunner, 873 N.E.2d 1232, 1 232 (Ohio 2007)

(per curiam) [hereinafter Brunn er II].