Simmons-Harris v. Goff

Douglas, J.,

concurring in judgment only. I concur that the School Voucher Program, as enacted by the General Assembly, violates the one-subject rule, Section 15(D), Article II of the Ohio Constitution. With regard to the rest of the majority opinion, while there is much I agree with, I find a number of the other assertions by the majority to be advisory in nature and, accordingly, while I concur, I do so only in the judgment.

I also write separately to address the dissent. I do so with regard to four matters.

I recognize that the majority opinion discusses the dissent in footnote 6. I believe that more needs to be said regarding the reliance by the dissenters on Pim v. Nicholson (1856), 6 Ohio St. 176 . For whatever reason, the dissenters fail to quote from Pim that court’s reasoning for holding as it did. Pim also says that “[w]e are therefore of the opinion, that in general the only safeguard against *18 the violation of these rules [the one-subject rule] of the houses, is their regard for, and their oath to support the constitution of the state. We say in general the only safeguard: for whether a manifestly gross and fraudulent violation of these rules might authorize the court to pronounce a law unconstitutional, it is unnecessary to determine. It is to be presumed that no such case will ever occur. ” (Emphasis added.) Id. at 181 . Thus, the Pim court, in the year 1856, found it unnecessary to determine, in that case, whether a violation of the one-subject rule did or would ever occur, and the court operated on the presumption that such a violation would never occur. It is, however, now apparent that a number of violations of the one-subject rule have occurred, and we have had brought to us a number of cases, like the case now before us, complaining of the persistent violation of the rule. Even the dissenters herein tacitly acknowledge this by adroitly avoiding any real discussion of the issue. Given such pronouncements as are contained in Appendix A, attached, we have a constitutional duty to no longer ignore the practice.

The dissenters also say that the majority “has concluded that the School Voucher Program is unconstitutional merely because Am.Sub.H.B. No. 117 contained unrelated subjects.” (Emphasis added.) “Merely” is defined as “[w]ithout including anything else; purely; only; solely; absolutely;, wholly.” (Emphasis added.) Black’s Law Dictionary (6 Ed.1990) 988. Here the dissenters are correct. The School Voucher Program absolutely (merely) does violate the Constitution and our oaths require us to say so when that is the fact.

Further, the dissenters say that “[t]his court recently observed the distinction between ‘directory’ and ‘mandatory,’ and refused to render void a judicial decision made in violation of a procedural statutory provision it deemed directory. In re Davis (1999), 84 Ohio St.3d 520 , 705 N.E.2d 1219 . The statute at issue required a juvenile court to enter judgment within seven days of a dispositional hearing.” (Emphasis added.) We, of course, in the case now before us are not deciding a statutory issue. We are called upon, herein, to interpret a clear, unambiguous and absolute provision of our Ohio Constitution, to wit, “[n]o bill shall contain more than one subject, which shall be clearly expressed in its title.” The difference should be obvious. Need we be reminded that it was Chief Justice John Marshall, as early as March 7, 1819, who explained for all of us who would follow that “[i]n considering this question, then, we must never forget that it is a constitution we are expounding”? (Emphasis sic.) McCulloch v. Maryland (1819), 4 Wheat. 316 , 17 U.S. 316, 407 , 4 L.Ed. 579, 601 .

Finally, the dissenters, in perhaps the most disturbing part of the dissent, say that “[t]he salutary effect of [judicial refusal to intervene] is the disentanglement of the courts from the procedural business of the legislature, reserving to the citizens the oversight of the legislature without unnecessary judicial intrusion.” *19 Should that proposition be accepted by a majority of this court, then the message would go forth to all of the judges of this state that they should become disentangled from the “business” of the legislature. In one fell swoop we would be turning our backs on Marbury v. Madison (1803), 1 Cranch 137 , 5 U.S. 137 , 2 L.Ed. 60 , decades and decades of cases following the doctrine of judicial review and, even, Alexander Hamilton’s reply to Brutus (Robert Yates) in Federalist, No. 78.

Fulfilling our obligations as a court does not give us any practical or real omnipotence. We are simply meeting the obligations and exercising the power mandated and conferred by the United States and Ohio Constitutions and sustaining the principle of separation of powers. We must always remember that the power of the people expressed through our Constitutions is superior to the authority of both the legislative and judicial branches of government. While some might call exercise of duty “intrusion,” others would define it as “commitment.” I ascribe to the latter.

Accordingly, I concur iii the judgment of the majority.

Resnick and F.E. Sweeney, JJ., concur in the foregoing opinion.