*1 Clinics, Development, Ohio Association of Free and Ohio Council of Behavioral Health Family & Services Providers. L.L.C., Farrin, Zaino; Hopkins,
McDonald Richard C. and Thomas M. Porter, L.L.P., Arthur, Trafford, Wright, Morris & and Kathleen M. urging reversal for amicus Ohio curiae Business Roundtable.
Schottenstein, Co., L.P.A., Zox & Dunn Stephen Byron, L. K. Rebecca Schal- tenbrand, Smith; Gotherman, Stephen J. and John urging reversal amici League, Ohio, curiae Ohio Municipal County Commissioners Association of Association, Township Buckeye State Sheriffs’ Association.
Taft, Hollister, L.L.P., & Stettinius Fred Livingstone, J. J. Donald Mottley, Stelter, D. urging Judson reversal amici curiae Ohio School Boards Association, Buckeye Administrators, Association of School and Ohio Association of School Business Officials.
Shirley Laskin, Sicilian and Sheldon H. urging reversal for amicus curiae Multistate Tax Commission. LetOhioVote.org Secy. Brunner, et al.
The State
ex rel.
of State.
[Cite as ex
Brunner,
rel.
LetOhioVote.org
O’Donnell, J. Jr., committee, Brinkman and Thomas E. LetOhioVote.org, a ballot-issue Pierce, of Hansen, and members LetOhio- Ohio resident-electors David and Gene the compel writ of mandamus to original seeking action Vote.org, filed this (“VLT”) 2009 provisions of video-lottery-terminal to treat the secretary of state (“H.B. 1”) and her subject discharge as to referendum No. 1 Am.Sub.H.B. Chapter 3519. and R.C. to Article II of the Ohio Constitution pursuant duties considerations, the which are policy focus of this case excludes narrow branches, on singularly centered the and executive legislative of province provisions have of referendum the VLT the citizens of Ohio the whether as many to locate as Lottery the Ohio Commission of H.B. which authorize 17,500 potential of 2,500 horse-racing tracks for VLTs at each of Ohio’s seven of provisions us these VLT in Ohio. The issue before is whether legal machines the of the state H.B. current appropriation are II of pursuant to referendum are therefore important question, we conclude After careful review this Ohio Constitution. invoked, appropriate that mandamus is an properly our has been jurisdiction to referendum. VLT of H.B. remedy, provisions and that extraordinary requested have established entitlement Because relators relief, secretary of state to treat the writ and direct the grant we 1 as to referendum. of H.B. provisions Background
Facts and Procedural 13, 2009, a directive the Ohio July Governor Strickland issued On 2}{¶ Terminals.” Lottery “Implementing Lottery particular, Video entitled take immediately steps Lottery directed the Ohio Commission governor 2,500 horse-racing as as VLTs each seven implement placement many of the commis- by Assembly acknowledgement tracks in Ohio upon However, conditioned the expressly authority governor sion’s to do so. by of the VLT passage the directive implementation as not enacted “into law that if the were Assembly, explaining General signed law and such law not budget the FY10-11 biennial prior Directive, days of the issuance into within five governor] [the law immediately null and void.” then be deemed Directive shall
1H.B. directive, day same issued VLT On the his General Assembly budget. enacted H.B. which includes the 2010-2011 biennial H.B. from the Profits provides line-item Education Fund Education, over billion to the Department appropria- increases $2.2 Department tion to the of Education for Foundation Fund from this Funding fund the current biennium million to reflect the revenues expected $851.5 May from the VLTs in implementation of associated license fees. 1H.B. also includes amendments to that authorize Chapter R.C. the State Lottery Commission to VLT operate games promulgate relating rules commission’s operation games, specify of R.C. Chapter 2915 criminalizing gambling inapplicable, activities are that bar political licensees, new assessing subdivisions license excise taxes on VLT *3 exclusive, purport jurisdiction that to vest this with original any court over claim the are unconstitutional.1 specifically, newly 1. More the amendments to R.C. 3770.03 the in {¶ a} and enacted R.C. 3770.21 follows, by language 1H.B. are as with the H.B. 1 in enacted italics: 3770.03.(A) lottery promulgate “See. The state commission shall {¶ b} rules under which conducted, includes, lottery may original statewide be and since the enactment this of included, authority operate lottery games. section has the the commission to video terminal for Any chapter any way authority in this to tickets shall be in construed to limit the reference of operate lottery games. Nothing chapter the commission to video terminal in this shall restrict the authority promulgate operation games utilizing the commission to rules related to the video of of * * * lottery terminals as described in section 3770.21 the Revised Code. of “ * * * {¶ c} “(B) rules, (A) promulgate The commission shall {¶ d} addition to those division of described section, pursuant Chapter this to lottery 119. of the Revised Code which a under statewide and joint lottery games may Subjects include, statewide conducted. covered these shall rules but to, following: not be limited “ * * * {¶ e} “(6) Any subjects necessary operation other commission {¶ f} determines are video for of lottery games, including fines, any fees, payment terminal the establishment or schedules. of “(C) g} Chapter to, affect, prohibit apply 2915. {¶ the Revised Code does not or lotteries of pursuant chapter." conducted to this (A) lottery any approved by “Sec. 3770.21. Video means {¶ h} terminal’ electronic device lottery provides prize participants commission immediate on an determinations electronic for display. “(B) include, lottery any adopted concerning state The commission shall mies {¶ i} video terminals, lottery by lottery the level minimum investments must be made video terminal of buildings grounds facilities, including temporary facilities, licensees in the and at the in which the located, along terminals will be with standards and timetables such investments. for “(C) j} No tax or license excise not in on the date section this shall be fee effect effective lottery county, by any toumship, assessed or collected a video terminal licensee district, municipal corporation, political authority school or other subdivision state that has lottery to assess or collect a tax or reason the video terminal related conduct authorized fee the amendments Assembly declared that enacting H.B. and from referendum exempt 3770.21—are to VLTs—R.C. 3770.03 relating within current “[they ] because are] relate[ 1.471 of Constitution, II, Id and section meaning of Ohio * * * Code, when this act immediately therefore effect take[] Revised that certain H.B. 1. H.B. 1 indicates additionally law.” Section 812.20 of becomes immediately and will not become referendum other amendments are 812.30, 1. 812.10, H.B. 812.50 of effective. Sections July H.B. 1 into law signed
Mandamus Case seeking filed action a writ of mandamus July On relators Brunner, treat Secretary of State respondent, Jennifer compel briefing H.B. 1 issued an accelerated as referendum. We Budget granted the motion the directors Office schedule respon- and the to intervene as additional Management Commission (“intervening respondents”). dents 23, 2009, secretary with July presented filing On relators state referendum-petition summary, part-petitions containing of numerous consisting 3,000 summary copy part-petitions filing
over of one of the signatures, and secretary attorney general. office of The office of H.B. 1 Assembly’s to the General declaration VLT sections deferred accept filing of the referendum declined a court office of the petitions contrary.” the absence of order to “[i]n *4 it, attorney general similarly rejected filing presented to based to subject conclusion that the VLT were not referendum. provisions rejection proffered filings precluded circulating relators petition signatures. sought, granted, the referendum Relators and we leave prohibit imposition This taxes section 3770.03 Revised Code. division does not under of of Chapter 718. or the Revised Code. of “(D) exclusive, supreme original jurisdiction any court shall have over claim {¶ k} any portion asserting 3770.03 or those or that this section or section the Revised Code sections of of Constitution, any adopted any provision any under violates the Ohio claim rule those sections lottery any by pursuant to asserting that commission those action taken or Code, any provision any provision or the Revised or sections violates the Ohio Constitution any provision asserting any portion any this violates the Ohio Constitu- claim that section exclusive, jurisdiction any supreme granted original by claim over this tion. court If court, by ground any claim on the that lower shall be dismissed the court division filed jurisdiction review it. the court lacks to “(E) be portion section 3770.03 the Revised Code Should section 1}{¶ found invalid, portions remaining remain in it shall be severed and the full force unenforceable effect."
to file an complaint amended that included the that place events took after the original complaint was filed. court, In briefs and arguments before this relators contend that the VLT
provisions to referendum they because are not appropriations for current state expenses, they neither make expenditures obligations, nor incur they are not temporary necessary measures an appropriation; effectuate instead, relators argue, provisions the VLT change constitute a permanent law of generates, this state that than spends, money, rather they seek a 90- day stay the VLT so that they may have a meaningful opportunity to circulate a petition. referendum The secretary of state urges she does not have a legal duty clear
disregard the Assembly’s General declaration in the bill that the are not adjudicate referendum or to question of whether the VLT provisions constitute an appropriation for current state expenses exempt from Instead, referendum. she maintains that she has a duty reject referendum petitions that do not comply express provisions of law suggests relators have an adequate remedy at law way of an action for a declaratory judgment injunction and an in the common pleas court. She also contends that relators are merely seeking a declaratory judgment an injunction, which this jurisdiction court lacks to issue. Intervening respondents contend that the VLT provisions are not they because appropriate money However, education.
to the extent that themselves are not direct appropriations, the intervening respondents argue that the process apply does not appropriations for current state expenses or to laws that are “inextricably tied” to a line-item appropriation for the current expenses of the Thus, or state institutions. intervening respondents claim that for, the VLT provisions provide to, or are inextricably tied the line-item appropri- ation for education in H.B. 1 because the VLT provisions generate the revenue Further, funds the appropriation. without the VLT provisions, the appropri- ation cannot immediately become required effective as II, of the Ohio Constitution. Lastly, the intervening respondents contend that a writ of granting mandamus would be vain act because the Commis- *5 already sion possesses the to authority implement VLT gaming without amendments enacted H.B. 1. Accordingly, we are called on to address whether
{¶ 12} relators are entitled to a writ of mandamus to compel secretary of state to treat the VLT provisions subject of H.B. 1 as to referendum.
327
Mandamus
mandamus,
a clear
must establish
a writ of
“relators
To be entitled to
relief,
duty
a
clear
requested
corresponding
legal
legal right to
in the
it,
remedy
lack of an adequate
to
and the
secretary
provide
of state
Brunner,
ex
v.
116 Ohio St.3d
ordinary
Heffelfinger
of the law.” State
rel.
course
¶
The
of Referendum
right
“The
of citizens to
is of paramount
constitutional
referendum
{¶ 18}
Brunner,
103,
State
Ohio
115
St.3d
importance.”
Assembly
ex rel.
Gen.
Ohio
* * *
¶
one of
most essential safeguards
representative government.
potential
good
virtue of the T. & R.’
reside in
good
does not
statutes and
initiated,
in
nor
proposed
bad statutes and bad
amendments
Rather,
greatest efficiency
constitutional amendments
are killed.
T.
and R.’ rests
imposed
wholesome restraint
automatically
general assembly
possibilities
and the
and the
governor
latent
when
power
by
called into action
the voters.”
ex rel.
State
Nolan
ClenDening
93
264, 277-278,
Ohio St.
Ohio Ohio Assembly, Gen. St.3d 873 N.E.2d 9. Thus, until generally do not take effect have days passed “[l]aws from the date they state, secretary filed a possible allow for 1c, II, referendum. Section Article Ohio Constitution.” Id. Right
Exceptions to the of Referendum Id, Article II of the Ohio Constitution sets forth exceptions to rule general that all laws and sections laws are to referendum and thus do immediately not become effective: levies, tax “Laws the current institutions, and state emergency necessary for preservation
the immediate public peace, health or safety, go shall into * * * immediate effect. laws mentioned shall section not be to referendum.” “we construing exceptions, these must ‘read words phrases ” according
context
rules of grammar
usage.’
and common
ex rel.
¶
Brunner,
110,
The of the the court should read the intervening contend that respondents The {¶ 25} appropriations. for” We appropriations providing for to include “laws exception Id, Article II of the used in Section Ohio reject language this contention. only “Laws for” modifies providing that phrase Constitution demonstrates an for Otherwise, provide exception Id would “Laws “tax levies.” Section also * * * Further, that two for laws.” the extent there are providing emergency narrowly that requires our caselaw we interpretations reasonable of referendum. exceptions construe Id, Article II of plain language of Section the Ohio Constitution {¶ 26} (1) laws for categories from referendum: exceptions creates three (2) levies, the state and tax for current appropriations expenses (3) institutions, necessary preserva- the immediate emergency state for (cid:127) health, tion public peace, safety. of the provisions that the VLT Intervening respondents also contend either with pari are an or that read materia themselves when lottery requirement any funds raised can be used education, only support legislation appropriation. agree. We do granted by general assembly An “an appropriation is authorization obligations and to incur R.C. specific purposes.” make expenditures 131.01(F). 47 Similarly, in ex rel. Akron Edn. Essex Assn. 47, 49, explained ordinary 1 St.2d O.O.3d we bill” is “measure before meaning phrase common “appropriation moneys legislative body expenditure public stipulat which authorizes ‘the ” amount, manner, Id. ing expenditure.’ of the various items purpose International quoting Webster’s New O.O.3d (9th Ed.2009) Ed.). (2d Dictionary Black’s 117-118 Dictionary See also Law (defining body’s setting act “appropriation” legislative “[a] mean aside sum money a public purpose”). H.B. 1 The VLT are themselves money not set a sum of for a they public because do aside neither R.C. 3770.03 nor 3770.21 as amended H.B. purpose; expendi- makes Rather, tures or obligations. they incurs authorize the State Commis- to operate games promulgate sion VLT and to rules to the commission’s relating games, operation specify Chapter VLT of R.C. criminalizing bar gambling inapplicable, political activities subdivisions from licensees, assessing new license excise taxes VLT purport vest this exclusive, original jurisdiction court over claim that the provisions are unconstitutional. reject respondent’s We intervening position because the funds education, VLTs
generated by the must be used for of H.B. *8 constitute an appropriation. Article XV that any Section mandates funds raised by lottery the state be used to support education “as determined appropriations made Assembly.” General The VLT provisions H.B. - not do A appropriate anything. separate provision of H.B. 1—line-item 200612 appropriates Thus, these funds to education. notwithstanding constitutional education, mandate that lottery spent all funds be of a separate existence line item for appropriation of the revenues generated by VLTs demonstrates that VLT provisions themselves are not appropriations.
Inextricably Appropriations or Tied Related to intervening respondents next claim even if the challenged VLT do specifically set aside a money specific sum for public within purpose, they are the appropriations exception they because are “inextri- cably tied” to appropriations billion in from $2.3 Profits Edu- cation Fund for education provided by H.B. 1. Relators counter that the VLT Id, sections are not within the Section II exception, Article because raise they revenue rather than spend it.
Section 812.20 The General Assembly specified 812.20 H.B. 1 Section that the amendment concerning VLTs in R.C. 3770.03 3770.21 is excluded from referendum because “it is or relates to an for appropriation expenses current Constitution, II, meaning within the Ohio Article Section and section 1.471 Id added.) of the Revised (Emphasis Code.” language, intervening This like the respondents’ advocated construction than exception, applica- broader ble constitutional language, which states that for “appropriations the current * * * expenses of the state and state institutions shall into go * * * Id, Section shall not referendum.” immediate effect be [and] exception include an language expressly II. The does Article the current appropriations expenses laws that relate to government. Moreover, exception previously analogous court has held to an actual Id, Article “laws for tax levies” “limited II for
Section taxes, to tax ‘relating’ is not with laws self-executing levy synonymous Keller, levies, levies, tax levies.” ‘concerning’ to tax ‘pertaining’ rel. ex syllabus; 141 N.E. three of the see also State paragraph St. 480, 483, 692 Franklin Common Pleas 81 Ohio St.3d Cty. Court of Taft to determine that an act authorizes the electorate (holding N.E.2d 560 taxes does not taxes and levy consequently whether should be levied II does not apply). Therefore, Assembly’s in Section notwithstanding language if act, excepted sections of H.B. are not 812.20 state-government expenses; merely relate to an for current they appropriation govern- is for for the current of the state exception (other levies) designed generate of laws than tax ment —not enactment that can appropriated. revenue that would referen- authority precedent permit There is our no that, implemented, once raise revenue exception apply
dum act, if—as the funds for an another even provide tied” to each they “inextricably or related intervening respondents claim— other.
Kelly and Rd. Assn. Cty. Sports v. respondents’ Kelly Marylanders reliance Intervening 36} {¶ (1987), 437, 245, Michigan Rd. v. Sanity, Cty. Inc. 310 Md. 530 A.2d Assn. of (1979), 101, 774, unpersuasive 407 282 N.W.2d Bd. State Canvassers Mich. cases involved linked an misplaced. legislation appropriation Both courts was not to referendum. determined Kelly, In held that authoriz- Appeals Maryland the Court statutes 37} {¶ authority through the state stadium to borrow funds the issuance bonds ing and football designating professional site for the construction of baseball to referendum because appropriations stadiums constituted that were interdependent legally package an inseparable those statutes were part 474, Similarly, 530 funds. 310 Md. at A.2d 245. legislation appropriated Assn., increas- concluded that statutes Michigan Rd. Court Cty. Supreme taxes constituted registrations various on fuel vehicle ing to referendum. department and were highway 332 Cty. distinguishable Rd. us Kelly and Assn. are from case before the state contain an jurisdictions exception
because constitutions those do not a tax legislation levy. from referendum for raises revenue See imposing Constitution; 16, 9, 2, Maryland Article Section Article Michigan Constitution. contrast, In the Ohio specifically exempts Constitution 39}
{¶
II,
for tax levies from referendum. Section
Ohio Constitution.
expressly excepted
raising
electorate could have
other means of
from
revenue
“
held,
but it did not. As we
consistently
expressio
‘[t]he
have
canon
unius est exclusio
tells us
express
thing
alterius
that the
inclusion
one
implies
”
the exclusion of the other.’
v.
Cty. Dept.
Family
Lucas
Job &
Crawford-Cole
¶
Servs.,
560,
that measures
raising
revenue to be
are not
appropriated
appropriations.
(1994),
Cooney
See Nicholson v.
415-416,
(rejecting
Mont.
Taft The intervening respondents on State v. rely Cty. ex rel. Franklin 41} {¶ Taft (1998), 480, 560, Court Common Pleas 81 Ohio St.3d N.E.2d and State ex (1916), 382, 1037, rel. Davies Mfg. Donahey Co. v. 94 Ohio St. 114 N.E. in support inextricably appropria- tied to of law that are provisions argument of their reliance, however, misplaced. is This from referendum. exempt tions are taxes imposing provisions legislation In held certain we Taft, not although they did to referendum were not public fund schools for a calling implementation those money because appropriate sections— use tax— in the state sales and increase proposed statewide election separate in a section for the election upon appropriation money depended 484, 692 .2d 560. Ohio St.3d at N.E of the same act. 81 not Taft, at in the VLT Unlike the issue intervening If as the anything, in H.B. 1. any dependent upon appropriation over concede, is appropriation $2.2 reversed: respondents dependency Fund Profits Education to the of Education from the Department billion of the the enactment upon projected in revenues from dependent, part, is provision dependent The VLT are also provisions. general to use authorizing inspector H.B. 1 the office of the in 305.10 of Section defray expenses $50,000 year any each fiscal operating expenses its imple- reviewing operations. the VLT Section 305.10 does associated with sections, money not use inspector general need ment operations. review VLT 382, 114 Davies 94 Ohio Intervening respondents’ Mfg., reliance on St. 44}
{¶ 1037, There, require- we that a misplaced. competitive-bidding N.E. also held an it only ment was not because was condition it became expenses government; for the current the state never appropriation permanent of the law. rel. 69 Ohio St.3d State ex Ohio AFL-CIO Voinovich “ changes of a law which explained ‘[a]ny 631 N.E.2d we section reserved powers to referendum under the permanent law Constitution], II people though of Article the Ohio even [of Section current law also contains a section for an under state institutions which ” II, immediately quoting effective.’ Id. 631 N.E.2d becomes 149, 167, ex rel. St.2d 5 O.O.3d Brown Ohio Riffe (O’Neill, C.J., dissenting). O’Neill observed N.E.2d 876 As Chief Justice AFL-CIO, 69 Mfg. Riffe, Davies which was overruled in Ohio distinguishing give practical “[t]o St.3d at effect exception appropriations, temporary provisions implement needed immediately. change perma also But a appropriation must be effective Ohio, incidentally may require governing people nent law 165, Riffe, St.2d at wholly is a different matter.” 51 Ohio appropriation, *11 challenged provisions The are not measures that are temporary VLT from lottery profits conditions made education fund. appropriations change by, alia, The VLT sections H.B. 1 law this inter permanent state VLTs, defining Lottery the State requiring promulgate Commission rules establishing buildings licensees’ minimum investments and at grounds located, facilities will barring where VLTs be new license or excise taxes on licensees after the date of provisions, purporting effective to vest exclusive, jurisdiction in original this court over asserting claims VLT or any sections actions taken or Lottery Commission pursuant Further, to these sections are unconstitutional. the amendment to R.C. 3770.03 permanently changes the law of Ohio authorizing the Ohio 3770.21(A) to operate games, Commission in proposed VLT defined R.C. to mean “any electronic device approved by lottery provides commission that immediate prize participants determinations for on an display.” electronic changes permanent The to the law of the state distinguish instant case from Mfg., temporary Davies measures were enacted to Taft appropriation. effectuate an VLT perma- issue here constitute nent changes will effective be well after the biennium ends and are thus subject to referendum. A different section the Ohio Constitution supports also our conclusion of H.B. 1 an appropriation. are not Section
II of the provides Ohio Constitution that “no appropriation shall made for a than longer period limitation, two In years.” temporal contrast to this provisions H.B. 1—R.C. 3770.03 and 3770.21—do expire years two are designed become a permanent state law for purposes of generating such, state As income. these are not appropriations. plain Id, language Article II of the Ohio Constitution
provides
exceptions
three limited
levies,
referendum:
tax
providing
laws
current
of the
government,
emergency
necessary
laws
health,
the immediate preservation
public
peace,
safety,
of which
none
expressly excepts changes
permanent
law of this
state that
provide mechanism to raise
provide
revenue to
funds for an
appropriation. Courts
exceptions
authorized
add
that are not con-
express
tained
language
Cf.,
of these
provisions.
e.g., State
Elections,
ex
Logan
rel. Stoll v.
Cty.
76,
tion would
mean
even if the electorate repealed
tax-levy exception,
for tax
levies would remain excluded from referendum because they are
addition,
under this inter
appropriations.
tied” or “related” to
“inextricably
Constitution,
Assembly
Article II of the Ohio
of Section
pretation
by legalizing
revenue for appropriations
enact laws to raise
presumably
could
referen
seeking
the electorate
thereby prevent
drugs
prostitution
an appropriation.
revenue to be used for
generate
on the manner it chose
dum
*12
Id, Article II of the Ohio Constitution. See
meaning
not the
of Section
This is
{¶ 51}
implement
authorized to
VLTs
Commission is
address whether
State
effective,
of H.B. 1 are
because
challenged provisions
of whether the
regardless
on this issue.
argument
evidence and
complete
have not submitted
parties
in this case
only
to
the narrower issue raised
opinion
confine our
here
We
of H.B. 1.
citizens to a referendum on the VLT
regarding
rights
Furthermore,
before us is
legal
squarely
to address a
issue
declining
judicial
advisory opinions,
principle
with our reluctance to issue
consistent
restraint,
right
in favor of the
to
our
to
construe election laws
duty
liberally
328,
Conclusion Brinkman, Hansen, Pierce, relators, LetOhioVote.org, Accordingly, mandamus, extraordinary relief in requested have established entitlement to the the submission of relators’ secretary accept and the of state directed the duties of her office as summary discharge and to referendum-petition II of the Ohio Constitution and R.C. 3519.01. provided by 1 do not of 2009 Am.Sub.H.B. No. video-lottery-terminal provisions they are exceptions right of the to the referendum fall within levies, expenses for the current for tax nor appropriations neither laws necessary for the immediate emergency nor government, of the state Therefore, health, they are safety. public peace, preservation referendum. AFL-CIO, at 236- decision in Ohio 69 Ohio St.3d conformity our at oral acknowledged by respondents argument, and as in which 90-day period to submit
relators are entitled to extension secretary of state. We petition referendum VLT and the enactment of R.C. stay the amendments to R.C. 3770.03 therefore from the of this 3770.21, days are the of H.B. for 90 date meaningful opportunity to allow relators a to circulate decision order petition. in which derive their representative democracy legislators is still a Ours state, enjoy of our who a constitutional authority from the citizens expressly provides appropriations referendum. While the Ohio Constitution for the current of the state are not law to such permanent changes relating may are not unmindful of the effect our decision have on the referendum. We *13 nor of commendable efforts of the of the executive and budget, members government branches of state to fulfill their constitutional duties to legislative Ohio; however, in budget duty balance the our own constitutional is to ensure of the of their compliance requirements irrespective Ohio Constitution effect on the state’s current financial conditions. granted.
Writ Lundberg C.J., Cupp, JJ., Stratton, O’Connor, Moyer, Lanzinger, concur. J., dissents.
Pfeifer, J., dissenting.
Pfeifer, I would the writ. deny
{¶ 56} Here, time, truly impression. This case is one of first for the first {¶ 57} analyzing budget purpose determining court is the state’s biennial bill for the citizens’ to seek referendum. this court has Although previously interpret Id, ed lc and Article II of the in ex rel. Sections Ohio Constitution State Riffe (1977), 876; 365 N.E.2d ex rel. Ohio Brown Ohio St.2d O.O.3d State 582; ex AFL-CIO Voinovieh Ohio St.3d Cty. rel. v. Franklin Court Common Pleas 81 Ohio St.3d Taft in that interpret this case is different we are asked to those sections budget prism in the context of the 2010-2011 bill. This difference alters the in we must view the relation to referendum. through legislation 1c, II of Article of referendum set forth Section people’s power The to raise and Assembly’s power by the Ohio Constitution is limited 1c, Id, II. Article II of the Article Section pursuant disburse funds Section provides: Ohio Constitution power people designated second aforestated reserved “The
referendum, required of the electors shall be signatures per and the of six centum for their to order the submission to the electors of the state petition law, any or item in law rejection, any any any section of law approval money passed by general assembly.” appropriating 1c, II on appropriations, Section does indeed allow referendum general namely, “any appropriating money passed item law Id, But Article II limits referendum’s reach: assembly.” levies, for tax for the current appropriations expenses “Laws institutions, necessary government emergency of the state and state shall into preservation public peace, safety, go the immediate health * * * immediate effect. The laws mentioned this section shall not be to the referendum.” Appropriations for “the current of the state
state institutions” are type shielded referendum. exceptions in Section Article II allow the without the legislature budget uncertainty brings legislative process. Free from the referendum, threat of fulfill obligations obligations and the means to those preserved with predictability. exemption from referendum allows the state liabilities; it, to make good budget its without could remain limbo for over a year, leaving pay expenses.” state unable its “current With the forward, shield from leaving budget- business of the state moves legislation related in place. *14 (“H.B. 1”) legislation The contained in Am.Sub.H.B. No. related to
{¶ 63} (“VLTs”) add-on, lottery video terminals is no mere legislative snuck into a Instead, mammoth legislation very bill. is at the heart of the budget bill, at very heart of how Ohio is for its over the next going pay spending two years. VLT-enabling legislation, budget Without crumbles. Pursuant to 1, $2,267 H.B. a appropriation billion for schools is dependent upon implemen- VLTs, in tation of VLTs Ohio. Without the income expected large part of vanishes, for that funding appropriation leaving million hole in the $851.5 budget. money directly inextricably The to be raised VLTs is and linked to a
{¶ 64} 3770.06(B) specific appropriation. requires lottery R.C. net from all profits including proceeds Lottery from VLTs-—to be into the deposited functions— 2011, years budget requires Profits Education Fund. For fiscal 2010 and bill Profits Education $2,267 directly Lottery from the billion flow approximately that formula. Funding to the Foundation according to local school districts Fund $2,267 Lottery that some billion from the bill instructs budget Line 200612 the 2010, nearly year than million fiscal Profits Education Fund —more $990 H.B. in the See go 2011—will to local schools biennium. year billion fiscal $1.3 monies are issued throughout budget period, regular 1 at 2797. At intervals treasurer for disbursement Lottery Profits Education Fund from the commingling every There is no throughout the state. school districts funds— Profits go Lottery million VLT revenue will into cent of the estimated $851.5 Fund, schools. every go cent of that fund will Education VLT-enabling at risk of legislation With make the from the Profits Education Assembly appropriation cannot to kill the that budgeted. Fund that it had To decimate the fund is There is no without source funds. spending comes from fund. have held that a law that highest Michigan Maryland courts of specific purpose it for a is sheltered from appropriates raises revenue and then Michigan Rd. Assn. v. Bd. State Canvassers power. Cty. the referendum (1979), 101, 774; Kelly Marylanders Sports Sanity, 407 Mich. 282 N.W.2d exempts 245. The Constitution “acts Michigan Inc. 310 Md. 530 A.2d from the of referendum. making appropriations for state institutions” Assn., 2. In citizens referendum on Cty. sought legislation Section Article Rd. on motor fuel and vehicle A bill weight. separate increased taxes vehicle allocations for transportation projects. Michigan Supreme established Court that the statutes the taxes should read in materia with establishing pari held appropriation statutes: “ materia are those which relate to the same or pari person ‘Statutes
thing,
persons
things,
purpose.
or the same class of
or
or which have
common
statute,
particular
interpretation
It is the rule that in construction of a
relating
subject,
having
of its
all statutes
to the same
the same
provisions,
it,
general purpose,
together constituting
should be read
connection with
as
law,
times,
at
although
containing
one
enacted
different
no reference one to
”
Mich,
Assn.,
Rd.
at
Detroit v.
Cty.
quoting
other.’
N.W.2d
Michigan
Telephone
Bell
Co.
374 Mich.
in the Referendum Amendment.”
from the
Maryland
exempts
at
A.2d 245. The
Constitution
310 Md.
maintaining
the State Government.”
power “appropriation[s]
referendum
a
Kelly
comprehensive
involved in
was
legislation
Section Article XVI.
at
land and construct
facilities
Camden
acquire
sports
scheme to raise funds
team, including provisions
NFL
possible
Yards for the Baltimore Orioles and
to raise revenue for the
authorizing
Authority
project
the Stadium
issue bonds
two
Lottery Agency
year
and a
that the State
conduct each
between
requirement
Authority. Kelly,
for the benefit of the
310 Md.
sports
and four
lotteries
Stadium
if
439-444,
that an
result would follow
at
entirely majority opinion, on the which applies a narrow but plausible interpreta- tion of our constitution’s limits on referendum. The wind, Assembly have sown the budget and now with a thrown into complete disarray, we shall all reap the whirlwind. Law, L.L.C.,
Langdon R. Langdon, Jr., David Thomas W. Kidd and Bradley M. Carvin, Peppo; Day, Cole, Jones Michael A. Douglas Readier, R. and Chad A. relators. Cordray, General,
Richard Attorney Coglianese, Gale, Richard N. Erick D. Chin, and Pearl M. General, Assistant Attorneys for respondent. General,
Richard Cordray, Attorney Benjamin Mizer, General, C. Solicitor Schimmer, Alexandra T. General, Chief Deputy Lieberman, Solicitor David M. Solicitor, Deputy Becker, General, William C. Assistant Attorney for inter- vening respondents.
Maurice A. Thompson, urging granting of the writ for amici Buckeye curiae the Solutions, Institute for Policy Public in Charge, Citizens Opposed Coalition Additional Spending Taxes, & Action, Ohio Citizen and the Ohio Freedom Alliance.
Matthew Burkhart Johnson, J. and J. Michael urging granting the writ for Education, amici curiae ATM Buckeye Association, Christian Schools Church Coalition for Decency, Values, Citizens for Community Citizens Media USA, Group/Christian Citizen Party Ohio, Constitution Eagle Ohio, Forum of Eischen Financial Group, Evangelical PAC, Fellowship Chapel, Family First City Nazarene, Grove Church of the America, Homemakers for Institute for Policy, Network, Principled Employment America, Jobs Plus Mission New Hope Center, Alliance, Christian Prayer Ministries, Ohio Governmental Pass the Salt Coalition, Richland Community Family Inc., the Ridge Project, Fork Rocky Formulas, Inc., Foundation, Sanctity Inc., Life Touch Ministry, the World Ministries, Influenc- Church, Truth Women Victory in Methodist Vandalia United Koob, Hood, Twyla Foxx, Stephen J. Nation, Ronald Pastor Peter J. ing Roman, Scott. Wayne and Pastor W. Jr., denial of the writ Berne, L.L.P., Mooney urging and Donald J. &
Ulmer Teachers, Officials Associa- Business Ohio School amici curiae Ohio Federation Bolton, and Jane Simon. Eve tion, Employees, Public School Association of Richards, L.L.P., K. Richard Pease, Sater, and Suzanne Vorys, Seymour *17 Hendershot, denial of the Thomas, urging Schuster, R. and Michael J. D. Michael Farm Bureau and Ohio of Retail Merchants for amici curiae Ohio Council writ Federation. Appellee. Judge, Appellant, McGee, Wilson, v. ex rel. McGee, 123 ex rel.
[Cite as State
Wilson
341,
appellant, Lawrence to correct its clerical under Crim.R. 36 court was authorized pleas The common of which Wilson was of the offense characterizing degree mistakenly error Zaleski, St.3d 2006-Ohio- ex rel. Cruzado convicted. See State ¶ Moreover, remedy by appeal adequate had an Wilson ¶ Finally, Id. at 32. Wilson with Crim.R. 32. noncompliance his claim of to raise in the court of it in his failing petition to raise appeal by claim on waived this