State ex rel. Ohio AFL-CIO v. Voinovich

Pfeifer, J.,

concurring. “There are more things in heaven and earth, Horatio/Than are dreamt of in your philosophy.” Hamlet, Act I, Scene v, 166. Indeed, the relators and this court merely scratch the surface in discussing the constitutional implications of the passage of this piece of legislation. All of our naive nitpicking only obscures the true affront to the Constitution that workers’ compensation legislation historically represents.

I

The majority opinion does effectively and pragmatically resolve the legitimate constitutional concerns raised by relators. My only quarrel with the majority opinion is its citation of State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 149, 580 N.E.2d 767, 770, to support the severing of the intentional tort and child labor provisions from the bill.

The present case and its factual context — rather than Hinkle — should set the standard for severability. This case is clear — Am.Sub.H.B. No. 107 was always principally about the structural reform of Ohio’s workers’ compensation system. The unrelated “add-ons” are easy to identify. Hinkle, on the other hand, expects members of this court to be wiser than Solpmon — to determine, whenever a bill has more than one subject, which portion of the bill is worthy of salvation. Direct personal knowledge tells me that this court severed the wrong portion of the bill in Hinkle — the unrelated legislative “add-ons” are what the court kept intact. To continue to follow Hinkle is to enter into judicial quicksand, and engage in the folly of believing that we can divine the most deserving of the legislature’s actions.

Therefore, I would have held that this case sets the high water mark for severability cases. Only in cases this plain — and there will not be many — should this court save portions of multi-subject bills.

*248II

The true affront to the Constitution in this area of the law has historically been and continues to be not in how many readings the bill is given or how many things are attached to it, but in how the legislation is created. The legislative process has never flourished in this area. Workers’ compensation legislation is historically brokered legislation, designed and agreed upon by interested parties, and not by the one hundred thirty-two elected representatives who make up the General Assembly. Once appropriately blessed, the legislation suddenly descends from on high, and the vast majority of legislators respond with an unquestioning acceptance, as if they had personally been handed the Ten Commandments by Moses himself.

The offshoot of this flawed process is our flawed workers’ compensation system. It is not the result of the legislature working its will over time, but is instead the result of the changing wills of the most powerful interested parties. Legislators who would have valuable, incisive input simply lie down and accept the brokered result.

While these inner workings never appear in the legislative journals, they are far more insidious and damaging than the claimed violations of the Constitution in this case.