State ex rel. Ohio AFL-CIO v. Voinovich

A. William Sweeney, J.,

concurring in part and dissenting in part. In my view, the 1993 enactment of Am.Sub.H.B. No. 107 clearly violates the one-subject rule of the Ohio Constitution, and the majority seriously errs in arbitrarily upholding portions of that legislation since the General Assembly’s attempt at “logrolling” constituted what was plainly a gross violation of the one-subject rule. While our prior decision in State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 149, 580 N.E.2d 767, 770, appears to permit severing “the offending portion of the bill,” the instant cause amply illustrates the malleability as well as the undesirability of such a standard. Notwithstanding the fact that Hinkle ultimately held that the entire legislation violated the one-subject rule, id., 62 Ohio St.3d at 151, 580 N.E.2d at 771, the severability language within that opinion creates uncertainty and promotes arbitrary and uneven enforcement of Section 15(D), Article II of the Ohio Constitution. The majority’s attempt to rationalize its judicial craftsmanship is unpersuasive and thus leads me to conclude that the severability aspect of Hinkle must be rejected in favor of the unmistakable standard adopted by this court in State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141, 11 OBR 436, 464 N.E.2d 153.

In this vein, unlike the concurring opinion of my esteemed colleague, Justice Andy Douglas, I believe it makes abundantly more sense for this court to reevaluate the wisdom of Hinkle, supra, and admit error by overruling it, than to essentially embrace all sides of the issue by decrying Hinkle as “bad law” in one breath and then join the majority opinion which uses the same “bad law” as the ratio decidendi for its holding. The methodology employed by the concurring opinion is akin to assailing the evils of alcohol over a few shots of whiskey. If the concurring opinion truly believes Hinkle should be overruled, I believe a clear reading of all the concurring and dissenting opinions in the cause sub judice indicates there is adequate support for such a result. Unfortunately, the undercurrent of all the concurring opinions seems to imply that the severability aspect of Hinkle should be kept alive only until the “preferred portions” of Am.Sub.H.B. No. 107 survive the compelling constitutional attack raised by relators herein.

I am also befuddled as to why my learned colleague chooses to equivocate from his prior stand in Hinkle, supra, by refusing to dissent to the instant holding. I am disappointed that he fails to dissent from the “bad law” generated by the *250majority opinion, when in the past he has been a tireless advocate for what he believes and never hesitated to dissent when he felt the majority reasoning was faulty or embraced “bad law.” See, e.g., Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 247, 553 N.E.2d 658, 662 (underinsured motorist coverage); Rocky River v. State Emp. Relations Bd. (1988), 39 Ohio St.3d 196, 209, 530 N.E.2d 1, 12 (Collective Bargaining Act); Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 155, 522 N.E.2d 464, 470 (employer intentional tort); Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 143, 19 OBR 341, 347, 483 N.E.2d 1168, 1174 (malicious prosecution).

In any event, given the magnitude of the General Assembly’s violation of the one-subject rule, our prior decision in Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 6, 19 OBR 1, 5, 482 N.E.2d 575, 580, undoubtedly compels that the entire legislation be invalidated: “ * * * where there is a blatant disunity between topics and no rational reason for their, combination can be discerned, it may be inferred that the bill is a result of log-rolling — the practice by which several matters are consolidated in a single bill for the purpose of obtaining passage for proposals which would never achieve a majority if voted on separately. This is the very practice which Section 15(D) was designed to prevent.” Unfortunately, the majority and concurring opinions conveniently ignore this passage from Hoover, which follows and tempers the quotation reproduced and highlighted in both opinions.

For these reasons, and for the cogent reasoning articulated by Justice Francis E. Sweeney, Sr. in his opinion dissenting in part and concurring in part, I would grant all of the requested writs.