# Bundy v. State

> Ohio Supreme Court · June 4, 2015 · 143 Ohio St. 3d 237

URL: https://www.frixlaw.com/law-library/cases/6798835

## Case

- **Full name:** Bundy v. The State of Ohio
- **Court:** Ohio Supreme Court
- **Decided:** June 4, 2015
- **Citations:** 143 Ohio St. 3d 237; 36 N.E.3d 158
- **Precedential status:** Published
- **Opinion:** Dissent by Neill
- **Judges:** Connor, Donnell, French, Kennedy, Lanzinger, Neill, Only, Pfeifer
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6798835

## Opinion text

O’Neill, J.,
dissenting.
{¶ 34} Respectfully, I dissent. Rather than reversing the judgment of the court of appeals and ordering the trial court to dismiss this action, I would take this opportunity to adopt a clearly understood rule of law. One who has been convicted of a crime that is found by a court not to be a crime has been wrongfully convicted. It is that simple, and justice demands no less.
{¶ 35} “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” Marbury v. Madison, 5 U.S. 137, 177 , 1 Cranch 137 , 2 L.Ed. 60 (1803). When Chief Justice John Marshall wrote these words for a unanimous United States Supreme Court more than two centuries ago, he declared a core principle of our legal system with roots descending back into the mists of time: Judges may invalidate unconstitutional laws and must resolve cases as if the unconstitutional law were never put into place.
{¶ 36} We have before us today a sufficiently similar case. Bundy has established that the criminal offense he was imprisoned for was predicated on a law that violated the separation of powers. See State v. Bodyke, 126 Ohio St.3d 266 , 2010-Ohio-2424 , 933 N.E.2d 753 , paragraph two of the syllabus. The law was therefore a legislative overreach purporting to grant unconstitutional authority to the executive branch in violation of Ohio’s Constitution. In Marbury , the legislature had purported to expand the original jurisdiction of the United States Supreme Court. Marbury at 175-176 . The court invalidated a section of the Judiciary Act of 1789 without providing the relief granted by that section, resolving the case as if the section had never been enacted. Id. at 177 (“an act of the legislature, repugnant to the constitution, is void”).
{¶ 37} If a law is enacted that extends beyond the power of the legislature enacting it, it is bedrock law that the enactment is and was a nullity without the force and effect of law. State ex rel. Huston v. Perry Cty. Commrs., 5 Ohio St. 497, 506 (1856). “In short, a law ‘beyond the power of Congress,’ for any reason, is ‘no law at all.’ ” Bond v. United States, — U.S. -, 131 S.Ct. 2355, 2368 , 180 L.Ed.2d 269 (2011) (Ginsburg, J., concurring), quoting Nigro v. United States, 276 U.S. 332, 341 , 48 S.Ct. 388 , 72 L.Ed. 600 (1928). It logically follows that one who is convicted of violating a law that has no legal force has been wrongfully convicted. “ ‘An offence created by [an unconstitutional law],’ the Court has held, ‘is not a crime.’ Ex parte Siebold, 100 U.S. 371, 376 , 25 L.Ed. 717 (1880).” (Brackets sic.) Bond at 2367 (Ginsberg, J., concurring). Consequently, if the state imprisons a person based on a wrongful conviction, that person is and always was legally and factually innocent. “ ‘A conviction under [such a law] is *248 not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.’ * * * If a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free.” (Brackets sic.) Bond at 2367 (Ginsburg, J., concurring), quoting Siebold at 376-377.
Christopher W. Thompson and Anthony Comunale, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Stephen P. Carney and Samuel C. Peterson, Deputy Solicitors, and Debra Gorrell Wehrle, Senior Assistant Attorney General, for appellant.
{¶ 38} I would affirm the judgment of the Second District Court of Appeals and remand to the trial court for execution of that court’s judgment.
{¶ 39} Therefore, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6798835. Public record. Not legal advice.