August 3, 2007

OHIO SUPREME COURT STRIKES DOWN STRICKLAND VETO ON LEAD PAINT BILL; OPINIONS REVEAL SHARP DISAGREEMENTS

Governor had no authority to veto a controversial lead paint liability measure that his predecessor wanted to let become law without his signature, a divided and sharply critical Supreme Court ruled Wednesday.

In the 5-2 decision, the court ordered Secretary of State to file the act (SB117, 126th General Assembly) and treat it as law.

The opinions in the case revealed deep disagreements between members of the court, with a dissenting justice saying the majority had welcomed the return of "judicial activism." In response, a member of the majority attacked the dissenter, saying his writing was full of "sarcastic scurrility."

Below is coverage from Gongwer News Service of the court ruling and reactions from state officials to this high profile case.

In the ruling, the majority said the 10-day window in which the bill could have been vetoed started on Dec. 26 - the day the assembly adjourned sine die - and expired on Saturday, Jan. 6, before he was sworn in as governor. The court found that the "purported" veto on January 8 - the day Mr. Strickland was sworn in to office - was invalid.

"Consequently, as asserted by relators, Am.Sub.S.B. No. 117 had already become law by the time the secretary of state returned the bill to the governor on January 8, 2007," Justice Robert Cupp wrote for the majority.

Chief Justice Thomas Moyer and Justices Evelyn Lundberg Stratton, Maureen O'Connor, and Terrence O'Donnell concurred.

"Our analysis begins and ends with the Ohio Constitution, our state's most fundamental law. We decide this case solely upon our considered understanding of the requirements expressed within the text of this governing document. The merit or wisdom of the policy contained within the legislature's enactment is entirely outside the scope of our consideration."

Before reaching the merits of the case, Justice Cupp said the majority determined that House Speaker of Kettering and Senate President Bill Harris of Ashland had the ability to bring the case.

1 The divisions among the justices began with a dissent from Justice Paul Pfeifer, who said the "foot-dragging" of the General Assembly and the "Pilate-like inaction" of former Governor forced the court's majority of finding a way to "resuscitate" the act. He said the majority delivered a "harmful blow" to the separation of powers, allowing the legislature "through the manipulation of its adjournment, to effectively render a governor's veto power a nullity."

Justice Pfeifer blasted the majority for its action, saying the decision is "willful" and made with the understanding of its long-term impact on the Constitution and the court itself. "The majority has achieved a new level of judicial activism - a wholesale rewriting of the Ohio Constitution. And all the General Assembly had to do was ask," he wrote.

He wrote that the opinion means the legislature can effectively eliminate a governor's veto authority by waiting ten days after a sine die adjournment to deliver an act to the chief executive. "Through its decision today, the majority reveals that it is the General Assembly's schedule, not the Ohio Constitution, that controls the governor's veto power," he continued.

Justice Pfeifer charged that that the ruling was "the ultimate display of result-oriented justice," saying that the majority's opinion "has been the story of a result in search of a justification and an author."

Whether one considers Governor Strickland's veto gambit as clever or devious, whether one believes that vetoing legislation when the preceding governor has made it known that he wishes the legislation to become law without his signature is impertinent or tactical, the fact remains that his decision was hardball politics. Brilliant or backhanded, it was politics," he wrote. "And most importantly, it was constitutional."

Justice O'Connor noted she agreed with the majority opinion and took aim at Justice Pfeifer's conclusions, saying he had issued an "improper accusation that the majority has not decided this case of first impression with honesty and integrity."

"Although civility is an amorphous concept in legal arenas, at a minimum it suggests proceeding without insult and ad hominem attacks when discussing those who hold an opposite view," Justice O'Connor said. "Unfortunately, Justice Pfeifer disregards the same civility he once espoused in favor of a dissent filled with sarcastic scurrility."

She said the outcome of the case was not pre-ordained, adding that opinion drafts have been circulating for 10 weeks. Justice O'Connor said her colleague's comments were unnecessary and did a disservice to the courts and to Ohioans.

"I have had many disagreements with my colleagues about the scope and proper application of the law, as even casual review of our precedent makes clear," she continued. "Justice Pfeifer and I agree from time to time, but we often find ourselves at odds in the resolution of the cases we hear. Despite those disagreements, I, until today, had maintained the appropriate respect for any position maintained by Justice Pfeifer."

Justice Stratton argued that former Governor Bob Taft finalized action on the bill when he declared his intent to allow it to become law without his signature. "I believe that the stronger and simpler position for invalidating the veto is to hold that when the governor decides to allow a bill become law without his or her signature and files the bill without written objections with the secretary of state, the governor's constitutional authority over the bill terminates," she wrote.

2 In a separate dissent, Justice Lanzinger said the 10-day clock should begin the day the governor is given the act, and is not tied to legislative adjournment.

"The time for review of legislation by a governor begins running on date of presentment, since a bill becomes law if it is not returned within 10 days 'after being presented to him'," she wrote. "Contrary to the majority's view, the words 'when the General Assembly remains in session' do not appear in Section 16. Instead, the sentence begins with the general rule: the ten days for a bill to become law without the governor's signature begin to run from the date of presentment."

"The court was a divided court and if you read the dissenting decision, I think it makes a lot of sense," Gov. Strickland said.

The governor, said he would respect the decision even though he remains in disagreement with the court majority's interpretation of gubernatorial veto power.

Conversely, Senate President Bill Harris (R-Ashland) called the ruling "a victory for the state and an affirmation that the state Constitution cannot be manipulated."

"Senate Bill 117 was passed with the required majorities in the Ohio House and Senate, was delivered to the Governor in a timely fashion and allowed to become law without his signature," he said in a statement.

Secretary Brunner said she would abide by the high court's order and that it "clarifies the interpretation of state law and the state constitution." The Secretary was quoted by as saying that she will not allow any do-overs if the legislative sends her office bills that have clerical errors. This also raises questions about the enactment of labor portions of House Bill 694 from last session, when her office allowed legislative clerical errors to be corrected.

Speaker Jon Husted (R-Kettering) said he wasn't surprised the legislature prevailed. He said he would look into a measure to clarify the matter for future General Assemblies.

"With this in mind, the Ohio House of Representatives will look into introducing a measure to address this matter and clarify that a Legislature must - following sine die adjournment - deliver legislation to the governor promptly, in order to provide the executive branch ample time for a full and proper review," Speaker Husted said.

BROADBAND OHIO NETWORK TO EXPAND HIGH SPEED INTERNET ACCESS IN OHIO

In order to coordinate and expand access to the state’s broadband data network, Governor Ted Strickland has signed an executive order establishing the Ohio Broadband Council and the Broadband Ohio Network.

The order directs the Ohio Broadband Council to coordinate efforts to extend access to the Broadband Ohio Network to every county in Ohio. And the order allows public and private entities to tap into the Broadband Ohio Network – all with a goal of expanding access to high- speed internet service in parts of the state that presently don’t have such service.

“Ohio’s economic future relies on our ability to compete in a high-speed, high-tech global marketplace,” Strickland said. “The Ohio Broadband Council will partner with the public and

3 private sectors to help make sure that every Ohioan has viable access to affordable, high-speed internet service, regardless of where they live, work or learn.”

The order (Executive Order 2007-24S) directs state agencies to use the Broadband Ohio Network rather than the patchwork of public and private networks agencies presently use, allowing the state to realize cost savings and efficiencies.

In addition to developing a plan for statewide broadband deployment, the Ohio Broadband Council is charged with coordinating all state-funded broadband initiatives, pursuing additional federal investments in broadband, promoting public and private broadband initiatives and addressing the digital divide in Ohio’s rural and urban areas.

The Council, to be co-chaired by the state Chief Information Officer and the director of the Ohio Supercomputer Center, will consist of representatives from several state agencies, four state legislators and the director of the Governor’s Office of Appalachia or his designee. In addition, the governor will appoint representatives from Ohio’s business and labor communities, local governments and the general public to serve on the Council at his discretion.

The governor has charged the Ohio Broadband Council to extend access to the Broadband Ohio Network so that state agencies in all 88 counties can be linked to the nearest connection point on the network. In addition, the order authorizes governmental and non-governmental entities to access the Broadband Ohio Network.

“This is the first step in bridging the digital divide in Ohio, and I look forward to working with industry providers, businesses and our local communities to take additional steps to provide superior broadband access to all of Ohio’s 88 counties,” Strickland said.

APPOINTMENTS TO NEW WORKERS' COMPENSATION BOARD OF DIRECTORS ANNOUNCED

Governor Ted Strickland today appointed 11 members to the newly established Workers’ Compensation Board of Directors, with William Lhota serving as chair. The independent, external board of directors will serve as the primary fiduciary entity of BWC funds and be held accountable for the bureau’s operations.

Strickland selected the 11 non-legislative members of the board from 43 names submitted by the Workers’ Compensation Nominating Committee, chaired by Lt. Gov. . CCAO President Olen Jackson, Morrow County Commissioner, served on this committee.

The non-legislative membership of the board consists of one representative of employees, two representatives of employee organizations, three representatives of employers, two investment and security experts, one certified public accountant, one actuary and one member of the public.

Once convened, the members will form three subcommittees to provide independent advice and verification of BWC financial and operational performance: an audit committee, an investment committee and an actuarial committee.

4 The following individuals have been selected to serve on the BWC Board of Directors:

° William Lhota, Chair and Representative of Employers (for self-insuring employers)

° James Hummel, Representative of Employers (for state-fund employers with over 100 employees)

° Jim Matesich, Representative of Employers (for state-fund employers with fewer than 100 employees)

° James Harris, Representative of Employee Organizations

° David Caldwell, Representative of Employee Organizations

° Philip Fulton, Representative of Employees

° Larry Price, Member of the Public

° Charles Bryan, Actuary

° Kenneth Haffey, Certified Public Accountant

° Robert Smith, Investment and Security Expert

° Alison Falls, Investment and Security Expert

$1.2 MILLION HOMELESSNESS PREVENTION PILOT

The state will use a new, two-year pilot program to assist families at risk of becoming homeless, under terms of an executive order that Governor Ted Strickland signed on Thursday.

The order creates a $1.2 million program that was recommended by the Interagency Council on Homelessness and Affordable Housing.

The council, according to the order, recommended boosting efforts to identify families at risk of losing their homes and developed strategies for avoiding the problem.

The new Family Homelessness Prevention Pilot Project - to be tested in five urban and rural areas - will be jointly implemented by the Departments of Development and Job & Family Services. DOD will be charged with administration and evaluation.

Mr. Strickland directed DJFS to transfer the $1.2 million in financial support from Temporary Assistance for Needy Families funds.

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