The Ohio Supreme Court Justices Who Stood Up Against A Lawless Decision
From David Pepper's 6/17/23 Pepperspectives
Ohio is blessed to have three wonderful and principled jurists on the Ohio Supreme Court in Justice Melody Stewart, Justice Mike Donnelly and Justice Jennifer Brunner. I will forever be proud to have played a role in their successful campaigns in 2018 and 2020.
[On June 16th], as the Ohio Supreme Court majority issued a shameful decision allowing an August special election on altering the Ohio Constitution—by allowing the Ohio legislature to openly violate the law it passed only months ago (banning August special elections!)—these three Justices called out their colleagues’ abdication of the Court’s pivotal role in upholding the rule of law. Their powerful dissents captured not only how lawless the legislature’s actions have been and how flawed yesterday’s majority decision is, but how dangerous a point we have reached with respect to the broader governance of Ohio.
Here are some excerpts (italics are mine):
Justice Donnelly:
“What happened leading up to this [case] did not have to be a big deal. Before last year, this case would have been a nonissue. But at the end of 2022, the General Assembly passed a law that prohibits statewide special elections in August. Now it wants to have a statewide special election in August. The General Assembly could have easily made any number of changes to Ohio election laws to allow for its proposed special election. But rather than changing the law, the General Assembly and respondent, Secretary of State Frank LaRose, want to be told that the Ohio Constitution allows the General Assembly to break its own laws. Rather than doing the work themselves, they want this court to fix their mess and do their work for them. Sadly, a majority of this court obliges…”
Donnelly also points out that Secretary of State LaRose is separately violating Ohio law by moving forward with a special election forbidden by statute:
“Although the General Assembly may trigger the secretary of state to act through a joint resolution under Article XVI, Section 1 of the Ohio Constitution, the secretary has the duty to faithfully execute the laws of Ohio. See Article III, Section 6, Ohio Constitution. The General Assembly cannot command the secretary of state to violate the laws he is bound to follow. …S.J.R. 2 orders the secretary to perform acts that violate the law, and it is therefore the secretary’s clear legal duty to strike the proposed constitutional amendment from the special-election ballot.”
Justice Brunner:
“[W]hat the General Assembly has done is ignore the law. This, it cannot do. While the legislature could have repealed the prohibition on August special elections via legislation, it attempted to do so but failed….That failure speaks volumes. So instead, it simply adopted a joint resolution in direct violation of the law. But we have long held that “[t]he statute law of the state can neither be repealed nor amended by a joint resolution of the general assembly.” …Nor is the General Assembly or its members above the law….
Today, we should be holding that the legislature may not “prescribe” what is not provided by law. We must strike from S.J.R. 2 that provision that sets the date for a “special” election for August 8, 2023, and order the secretary of state to instruct the boards of elections of this state not to hold such an election, as it can neither exist nor proceed under the law of this state.”
Brunner then takes a moment to explain the deeper damage done to our state by this decision:
“The judicial power in Ohio is vested in the courts. Article IV, Section 1, Ohio Constitution. Each of the three branches of this state’s government is coequal with the others. When out of balance, our very purpose for existing, including the protection of inalienable rights as provided in Article I, Section 1, is ominously undercut, affecting the essential truth that “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety,” id. A government out of balance, whereby one branch inexplicably and without basis to do so accedes to another—especially in the interpretation of rights reserved to the people—taints the very stewardship to which we, as the people’s servants, must give ourselves completely.”
Justice Stewart signed on to both dissents
Note: the opinion allowing this illegal election to go forward was only signed by three Justices.
Why only three?
Apparently, the fourth and deciding Justice, Par Fischer, found that opinion so unconvincing, he couldn’t even bring himself to sign onto it. Instead, the decision simply includes this notation: “FISCHER, J., concurs in judgment only.”
And that’s it.
Not one word from Justice Fischer explaining why he went along with an opinion he didn’t find convincing enough to sign on to, and not one word rebutting these two devastating dissents.
That silence is a perfect symbol of an indefensible decision.