Constitutional Authority For Strickland's Veto
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.