Ohio Supreme Court Upholds Validity of S.B. 117

Maria J. Armstrong
Bricker & Eckler LLP
August 2007

Full text of the Ohio Supreme Court decision

On August 31, 2007, the Ohio Supreme Court reversed itself. See the August 31, 2007 update to this article

On August 1, 2007, the Ohio Supreme Court issued a contentious and long-awaited ruling in State ex rel. Ohio Gen. Assembly v. Brunner, 2007-Ohio-3780. The case involves the duties of a Secretary of State when an unsigned bill is filed by the Governor with the Secretary of State’s Office.

Senate Bill 117 contained a number of tort reform measures, including a clarification that suits against product manufacturers could only be brought under the Ohio product liability law and not the state’s public nuisance law. The Bill was passed, signed and enrolled in the General Assembly on December 14, 2006. The General Assembly then adjourned sine die on December 26, 2007. Senate Bill 117 was presented to Governor Taft on December 27, 2007.

Governor Taft decided to let Senate Bill 117 become law without his signature, and issued a press release announcing his intention. On his last business day in office, January 5, 2007, Governor Taft caused S.B. 117 to be filed with then-Secretary of State Ken Blackwell. When Governor Ted Strickland took office on January 8, 2007, he asked Secretary of State Jennifer Brunner to return S.B. 117 to him. Reasoning that the ten-day timeframe for vetoing legislation had not yet run, the Secretary of State returned S.B. 117 to Governor Strickland and he vetoed it.

The General Assembly filed suit, arguing that S.B. 117 became law before January 8, 2007 and urged the Supreme Court to order the Secretary of State to process and implement S.B. 117 as required by law, notwithstanding the Governor’s veto. In a 5-2 ruling, the Court agreed with the General Assembly. In sum, the Court found that the ten-day period for the Governor to act on S.B. 117 began when the General Assembly adjourned on December 26, 2006 and expired on Saturday, January 6, 2007. As such, the Secretary of State did not have authority to return the bill to Governor Strickland on January 8, 2007 and the Governor's attempted veto of the bill was “without effect.”

Justice Cupp authored the decision, with Chief Justice Moyer and Justices Lundberg Stratton, O'Connor and O’Donnell concurring. Justices Lundberg Stratton and O'Donnell wrote separate concurrences, agreeing with the conclusion reached by the majority, but citing different reasoning for their conclusions. Justice Lundberg Stratton concluded that when Governor Taft filed the bill without signature, he relinquished authority over the bill and “neither he nor a successor governor could retrieve the bill and act upon it.” Justice O’Donnell similarly determined that, having filed the bill with the Secretary of State, the Governor completed his role and could not retrieve the bill and act upon it again.

Justice Pfeifer filed a lengthy and contentious dissent. Justice Pfeifer analyzed the history of the constitutional provisions at issue and expressed concern about the possibility that a General Assembly could delay presentment of a bill and cut short a Governor’s time to review a bill. Justice Lanzinger also dissented, finding that the ten-day period to review a bill was triggered, under the facts of this case, on the date the bill was presented to the Governor, rather than the date the General Assembly adjourned. Using this timeframe, Justice Lanzinger found, the ten days had not yet passed when Governor Strickland took office.

With this decision, S.B. 117 becomes law. Since the Court held that the Governor’s veto was without effect, the law should be effective on or about April 5, 2007. However, some questions have been raised as to whether a stay might be requested, a referendum challenge filed, or a collateral attack based upon the single subject rule brought. In addition, a number of pending court cases, particularly those brought against certain lead paint manufacturers, will undoubtedly be affected by this decision. How the lower courts will interpret and apply the impact of State ex rel. Ohio Gen. Assembly v. Brunner remains to be seen.

August 14, 2007 Update. On August 13, 2007, the Ohio Secretary of State filed a Motion for Reconsideration or Stay of the Ohio Supreme Court's decision reversing Governor Strickland's veto of Am. Sub. S.B. 117. For more information, see S.B. 117 Litigation.