On August 31, 2007, the Ohio Supreme Court granted the Secretary of State's Motion for Reconsideration or Stay in State ex rel. Ohio General Assembly v. Brunner and issued a per curiam decision holding:
[D]espite our statements to the contrary in Brunner, Am.Sub.S.B. 117 became law on August 1, 2007. Therefore, pursuant to Section 1c, Article II of the Ohio Constitution, the electors of this state have 90 days from August 1, 2007, to pursue referendum.
Previously, in its August 1, 2007 Brunner decision, the Court held that S.B. 117 became effective 90 days from January 5, 2007, pursuant to Section 1c, Article II of the Ohio Constitution.
In a significant departure from the initial Brunner decision, Chief Justice Moyer and Justices Lundberg Stratton and O'Connor reasoned that "given the unique facts of this case, . . . Am.Sub.S.B. 117 . . . was a nullity from the date of the veto, January 8, 2007, until the date of our decision, August 1, 2007."
The majority expressly recognized the concerns raised by amici opposing the Secretary's motion, but held that such concerns were overshadowed by the important right of referendum. The majority stated that its previous Brunner decision "unintentionally deprived the citizens of the right to referendum that they would have enjoyed were it not for the unavoidable delays associated with judicial review."
Justice Lanzinger concurred in the judgment only, agreeing that the right of referendum must be respected.
Justice Pfeifer concurred in the decision granting a stay to allow for a referendum period, but dissented with respect to when the 90-day referendum period begins. According to Justice Pfeifer, the referendum period should begin on August 31, 2007 because that is "the day Ohioans have learned that they may assert their right to referendum."
Justices O'Donnell and Cupp dissented, with Justice O'Donnell joining in Justice Cupp's dissenting opinion and writing separately to express his view that "the majority's opinion is advisory in nature and grants relief in derogation of the Ohio Constitution." Justice O'Donnell concluded his dissenting opinion by stating that "the fact that this case is unique does not justify granting . . . extraconstitutional relief. The Supreme Court of Ohio does not have the authority to amend the Ohio Constitution by judicial decision."
Justice Cupp, who wrote the majority opinion in the initial Brunner decision, dissented for a variety of procedural and substantive reasons. The procedural reasons cited by Justice Cupp are as follows:
- The Secretary's motion was not a proper motion for reconsideration because she was seeking relief that she could have requested while the case was pending on the merits. In fact, the Secretary's original merit brief expressly stated that "any referendum issues are moot."
- The secretary's standing to request a stay to allow a referendum period "is questionable at best." The Secretary's brief on the merits stated that she had no legal duty to calculate and publish the date by which referendum petitions must be filed because the Ohio Constitution establishes that date.
- The Secretary's request is akin to a request for an advisory opinion because she has not received any petitions.
Also, Justice Cupp elaborated as to why the relief sought by the Secretary (and granted by the majority) is not warranted on the merits. He wrote that it is well-established that courts must strictly construe requirements for referendum, including the time limits for filing petitions. Section 1c, Article II of the Ohio Constitution provides when a law becomes effective. There is no precedent holding that litigation or possible confusion over the effect of a veto suspends the 90-day referendum period. As a result, "[n]either the governor's purported veto nor the commencement of this case challenging it, without more, prevented the law from going into effect in accordance with Section 1c, Article II."
In sum, Justice Cupp recognized that no matter how laudable or desirable a stay may be to allow for the opportunity of referendum, the majority's unprecedented remedy is contrary to the Ohio Constitution and this Court's previous decisions.