Constitutional Authority For Strickland's Veto
Submitted by Jerid on Tue, 01/09/2007 - 10:12am.
In coming days we're going to have a lot of discussion regarding the powers of the Governor; the right wing is already circulating blatantly false information about those powers and issues regarding the veto. This morning, I present you with a quick run down on Ohio's veto, and how Strickland has acted within his authority. I researched a lot of the legal stuff in this post fairly quickly (and afterall, I am only a 1L) so feel free to shoot me an email if you find any inconsistencies or if I portrayed anything incorrectly.
Neither the Ohio Constitution of 1802 or 1851 originally allowed the veto for the Governor. However, with a popular push in 1902 the power was adopted (and subsequently modified in 1912). There is no "pocket veto" similar to that of the federal executive powers. In Ohio, a governor can take a variation of one of three steps after being presented with a bill:
1. Sign the bill and file it with the Secretary of State turning the bill into State law.
2. Do nothing. Ten days after the bill has been presented to him, it becomes law as if he had signed it.
3. Veto the bill and return it to the legislative house it originated in with his written objections (if 3/5's of the house of origin vote on the bill once again and approve it, it is sent to the other house where another 3/5's approval overrides the Governor's veto).
The scenario we face with the lead paint bill involves the inaction described in #2. The Ohio Constitution decribes this process in Article II, Section 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 shal file with the secretary of state every bill not returned by him to the house of origin that becomes law without his signature.
The question in this case is what the definition of "after being presented to him" is. This is a question that has never been litigated, and is not defined in the Ohio Constitution or any statute that I have found thus far.
Litigation has never arisen in the past over other specific questions of when the 10 day clock starts. However, assumptions regarding when the 10 day clock have been made by past courts, one applicable case being Patterson Foundry & Machine Co. v. Ohio River Power Co. 99 Ohio St. 429, 124 N.E. 241 (Ohio 1919).
Patterson was a contract case involving the Public Utilities Act which was passed by the legislature on May 31, 1911. The question in that litigation was whether a specific contract entered into on a later date fell under price regulations set forth in the act. While the specific outcome the court decided regarding the contract is really of little consequence to us regarding today's question of Strickland's veto, the process in which the court took to determine the validity of the act does matter.
In Patterson, the Court determined that the act was "presented to" Democratic Governor Judson Harmon on June 2, 1911 when he actually received the bill; not on May 31st when the legislature originally approved the act. The Governor chose not to act on the bill and let his 10 day period expire without explicitly vetoing or approving the act. Thus, Art. II, §16 of the Ohio Constitution was invoked and the bill went into law. Later questions regarding when exactly the thrust of the bill's provisions took effect prompted the litigation.
According to the Dispatch yesterday, Governor Strickland chose to exercise his veto because the 10 clock had not closed:
Taft's office thinks that 10-day period began on Dec. 26, the day the senate adjourned after a lame-duck session, former Taft spokesman Mark Rickel said. That would mean the bill became law last Friday.
Strickland and his new legal counsel, Kent Markus, say the clock started ticking on Dec. 28, the day after the bill was transmitted to the governor's office -- meaning the 10 days doesn't expire until midnight tonight.
Governor Strickland's reasoning seems to fall within Art. II, §16 and the past reasoning courts such as Patterson have used for determining when the clock starts. As such, it appears he's wholly within his bounds of veto power as the chief executive officer of this state.
A good question to ask is why did Governor Taft choose not to sign the bill? This whole controvery could have been avoided, and Republicans could have avoided their arguments had Governor Taft simply put his approval on this legislation. The Governor's choice for codifying legislation through inaction is often used when the executive disagrees with legislature, but wants to avoid the political defeat of having a veto overruled. While a veto most likely would not have been overruled on this legislation in the GA, it could have been potentially harmful to Governor Taft's future in the private sector had he vetoed a piece of legislation popular with the Republican business bloc. I'm curious whether he gave the pretense of allowing the bill to slip into the law within the 10 day period, while in reality coordinating with the incoming Strickland administration to ensure the bill's defeat. With former Governor Taft currently in Tanzania, we may never know the answer to that question.
UPDATE (1/9/07 9:30am): The Dispatch raises more constitutional questions regarding the veto:
At the end of the day, Strickland tried to file the veto with Senate Clerk David Battocletti, but the clerk refused to accept it. A spokeswoman said he wasn’t sure it was legal to accept a veto message on a bill from the past General Assembly.
Taft vetoed a bill last week from the same legislative session, and that veto cannot be overridden because a new General Assembly has begun.
I'll be researching this issue later in the day. To all of BSB's legal readers, please comment and give us your perspective and view on what's unfolding.
Authority for Strickland's Veto
Submitted by philipz on Fri, 01/12/2007 - 1:51pm.
Another response to the VETO issue. The pertinent language of the Ohio Constitution Article II sec 16 states:
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 key language is “prevents its return.” This contemplates that the governor was already presented with the bill and then the legislature adjourns preventing the governor’s ability to return the bill. The language doesn’t shorten the governor’s amount of time but extends it, which is why Sunday’s are not excepted during the ten day period after adjournment. For example, the legislature presents the bill to the governor and then on day 9 the legislature adjourns sine die (final adjournment). The governor would then have 10 more days, counting Sundays, from the date of adjournment to veto or sign or do nothing.The Ohio Supreme Court has specifically construed this language to guarantee the office of the Governor ten full days from receipt of the bill to weigh objections. In Maloney v. Rhodes (1976), 45 Ohio St.2d 319, the Court stated that the “plain provisions” of Article II, Section 16 are “unmistakably clear,” an unsigned bill does not become law until the end of the tenth day, Sundays excepted, after the bill was presented to the Governor. The Court specifically stated that if the legislature adjourned within the ten day period while the governor was considering the bill that the governor would get 10 additional days from the date of adjournment. In addition, two other State Supreme Courts, Idaho and Illinois, have interpreted very similar language in their own state constitutions to not allow the adjournment provision to shorten (or extinguish) the review period of the governor.
There is no requirement in the Ohio Constitution that a bill be presented to the governor’s office within a certain time frame. The only requirement is that the bill be presented “forthwith.” Art. II Sec 15. Therefore, if the 10 day adjournment period controlled, that would effectively allow the legislature to pass a bill, delay ten days, and then present the bill. The ten day period would have expired and the governor, under the republican argument, would not be able to veto. This is an absurd result that should be avoided when interpreting constitutional provisions.The Illinois case addressed the need for review by the governor’s office to combat “the evils that flow from hasty and ill-considered legislation.” SB 117 was amended to cap noneconomic damages for victims of business fraud to an arbitrary $5000.00, reduce liability for lead based paint manufacturers whose products continue to injure people, and all but eliminates an insurance company’s liability for bad faith. This bill was passed without debate and without testimony. Moreover, victims of consumer fraud were willing and present to testify, but were “waited” out by the senate, which chose not to vote on the bill until nearly 10 p.m. when the victims had all gone home.
The lobbyists and the deceptive industries that backed this bill feel they don’t have to follow the same rules as the rest of us. Their arrogance is why they never saw the ten day issue coming. The bottom line is that Governor Strickland showed more leadership in his first 16 hours then the previous governor did in his entire tenure.
Damn kids
Submitted by modernesquire on Tue, 01/09/2007 - 1:00pm.
And their free Westlaw/LexisNexis access. I see that I've been beaten to the punch. Well played, Jerid. You win this round... for now.
Modern...
Submitted by Jerid on Tue, 01/09/2007 - 1:18pm.
Actually, I just caught another issue I missed in the post. Since the legislature adjourned during the 10 day period, the second half of section 16 applies. In that section it doesn't mention Sundays being excluded from the ten day period. Now you know and I know that because the section on the ten day period is all together, it seems like the Sunday exclusion applies...however, that'll be their angle (and the fact the legislature was adjoruned sine die is already being pointed to).
Still, it's not clear...and it's an issue that leans in Strickland's favor heavily, but there's enough of a gap where they can try to sneak in and steal it with their buddies in the court. We'll see.
Veto 10-day computation
Submitted by DelCo Dem on Tue, 01/09/2007 - 3:44pm.
To further muddy the waters, does a legislative enactment setting forth the method for computing the "time within an act is required by law to be done" apply when the law is a constitutional law?
R.C. § 1.14. First day excluded and last day included in computing time; exceptions; legal holiday defined.
"The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that, when the last day falls on Sunday or a legal holiday, the act may be done on the next succeeding day that is not Sunday or a legal holiday. When a public office in which an act, required by law, is to be performed is closed to the public for the entire day that constitutes the last day for doing the act or before its usual closing time on that day, the act may be performed on the next succeeding day that is not a Sunday or a legal holiday as defined in this section... [emphasis mine]."
yes, the constitution is the law
Submitted by RMC2000 on Tue, 01/09/2007 - 5:53pm.
if it said "required by statute" you might have an argument.
What about the adjournment clause?
Submitted by Schmajo on Tue, 01/09/2007 - 5:15pm.
"...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 GA had adjourned, so Taft was "prevented" from returning the bill to them. That being the case, he had to veto and file the bill with the SoS "within 10 days after such adjournment (last Friday).
It seems (to my reading) that this is a case where the adjournment sine die controls the veto timing, not the date when the bill was presented to the Governor. In other words, aren't the Rs correct?
Okay wizkids...
Submitted by modernesquire on Tue, 01/09/2007 - 7:08pm.
In practically every legal situation, you never count the day of the triggering event as the first day. So ten days from the date of adjournment would be at best for the Republican, Saturday, January 6th. In every legal rule of counting time (something that is very critical, albeit arcane, in litigation), if the deadline falls on a weekend, you have until the next business day to act.
I'd actually argue that R.C. 1.14 probably does apply. Since the Office of the Governor is closed to the public on Saturdays, then it is considered a "legal holiday" under the statute and therefore, Strickland had until yesterday to veto the bill and file his objections with the Secretary of State. Which is exactly what Strickland did.
The Republicans are just upset that Strickland was able to catch them being sloppy and took advantage of a clear opportunity to strike down one of several 11th-hour lame duck legislation that the General Assembly had no qualms about passing without consulting with the incoming Administration. Boo-hoo.
Modern, I agree with your analysis...
Submitted by DelCo Dem on Tue, 01/09/2007 - 8:47pm.
But if the latest date that the House/Senate adjourned is December 26th, then I count the same way as Schmajo, that puts the date on Friday, January 5th, I believe. Am I counting wrong?
Dann Weighs in on Strickland Veto
Submitted by DelCo Dem on Wed, 01/10/2007 - 11:16pm.
The legal argument appears to be not how the 10 days are counted, as in ten days after adjournment, but instead the language itself that questions whether the legislature by adjourning can impact on the number of days that the governor has to consider a veto.
Per Dann: "The legislature could not unilaterally adjourn and then impact the constitutional rights of the governor," said Mr. Dann. "You don't allow someone to control someone else's constitutional rights unless it's specified."
I must say that this is an interesting argument and one that has merit, I believe. Essentially, the claim is that the constitution is well, unconstitutional! Consider this, the constitution does not require the legislature to transmit the law to the governor within a certain time period after adjournment. As such, the constitution allows the legislature to shorten the time period at will by unilaterally and unexpectedly adjourning before the end of the year, holding the law for up to ten days, then transmitting it to the Governor when it is too late to veto. Clearly, that was not the case here, but if the law is unconstitutional on its face, I would guess that the fact that the governor had one day or nine days to veto is rather inconsequential. Not that I am any great legal scholar...
the taft precident