State ex rel. Meshel v. Keip

Paul W. Brown, J.,

dissenting. While I express no opinion as to either the General Assembly’s wisdom in making the initial appropriation to ORTA, or the Controlling Board’s action thereon, I must register my disagreement with the majority’s decision herein.

By Constitution, the people of Ohio have divided the powers of government of this state into three equal, coordinate departments — legislative, executive and judicial. 8 The decision reached today by the majority serves to blur the distinction between the functions performed by, and the powers vested in, these separate and equal branches of the state government. It represents an impermissible judicial foray into the province of the General Assembly.

In the case at bar, we are not dealing with an issue of constitutional magnitude which would, perforce, require this court to exercise its jurisdiction. Rather, as stated by the majority, this court is called upon to ascertain the “legislative intent of the General Assembly regarding program goals and levels of support for ORTA.” The General Assembly, itself, is in an infinitely better position than this court to decide that question.

Stripped of its veneer, the instant action represents an attempt to have this court substitute its will for a policy decision reached by a duly appointed and functioning arm of the General Assembly — the Controlling Board. The action taken by the Controlling Board being correct both in form and law, this court should have declined to exercise jurisdiction in the matter. “Courts exist solely to declare and enforce the law, and are without authority as to matters of mere governmental *396 policy. Hence, all personal or political maneuvering, which complies with the law, in substance as well as in form, is beyond the authority of the courts to control. Thus if, because of either personal or political motives, officials fail to take the course of action best suited to the public interest, but take a course less beneficial to the public, yet, if the action taken was both in fact and in form in accord with the law, the remedy available to the citizens for the failure to take the best course lies, not with the courts, but at the polls.” Grogan v. DeSapio (1951), 15 N.J. Super. 604 , 83 A. 2d 809, at 611-612 . (Emphasis added.)

The majority does not contemn the constitutionality of the statute creating the Controlling Board. Instead, it holds that the Controlling Board may not exercise the power expressly granted to it by the General Assembly. The majority’s decision places this court squarely in the appropriation process, for, by its decision, the majority holds that this court may displace the considered judgment of the Controlling Board — a body directly responsible to, and directly under the control of, the General Assembly. As has been said, “* ^appropriations represent an exercise of legislative judgment. As such, they constitute a purely political decision and an exercise of governmental discretion.” Borough of Glassboro v. Byrne (1976), 141 N.J. Super. 19 , 357 A. 2d 65, at 24 . While the decisions of the Controlling Board may be more than advisory opinions, the fact remains that no action taken by the Controlling Board can withstand a direct legislative mandate to the contrary. The General Assembly, as a body, clearly is empowered to reverse any decision of the Controlling Board. Thus, the instant case represents an unjustifiable attempt to circumvent the legislative process. “Any legal action that has as its end the circumscription of the legislative power* * * [should be] viewed charily by this court. ***a ‘[w]ide berth***[should be] given to administrative decisions of a legislative character.’ This is the expression of a fundamental principle of constitutional law.” Outagamie County v. Smith (1968), 38 Wis. 2d 24 , 155 N.W. 2d 639, at 37 . (Citations omitted.)

Our government is premised upon the principle of the separation of powers into three equal branches. This court has jealously and properly guarded against' all attempts by the *397 other branches to unlawfully supervise or police the powers of the judiciary. Yet, by its action today, this court is, in fact, infringing upon the power of the legislature to oversee its own affairs. “For any one of***[the branches of government] to police or supervise the others strikes at the very heart and core of the entire structure. Abuses within the reserved sphere of any of these branches of government may arise, but that fact does not give license to one of the other co-ordinate branches to correct. Correction comes from within that branch itself or from the people to whom all public officers are responsible for their acts.” Renck v. Superior Court of Maricopa County (1947), 66 Ariz. 320 , 187 P. 2d 656, at 326 .

“ ‘All political power is inherent in the people, and governments derive their just powers from the consent of the governed. This is not a mere metaphor, that sounds pleasing to the ear, nor is it a maxim that may not have a concrete application; but it is a vital principle, adhered to in the formation of the government of this state.’ ” Id. (Citation omitted.)

I believe that the question presented is, in fact, one that requires this court to supervise and police the internal functioning and decision making processes of the General Assembly. 9 As such, it represents a political question which is not justiciable in this court. For the foregoing reasons, I would dismiss for lack of jurisdiction.

Articles II, III, and IV of the Ohio Constitution.

This action seeks a certificate of availability of $1,200,000, for the contract in question. The majority decision leaves only $355,541 for this purpose. Thus, if the majority is correct in its conclusion that the Controlling Board has thwarted the program goals set by the General Assembly, this court has in effect denied relief, leaving the relator with no option except legislative action in a future budget.