Strickland veto now math problem

COLUMBUS - Former Gov. Bob Taft may have raised the math bar for students on his way out the door last week, but Democrats and Republicans are still arguing over how to count to 10.

"How many lawyers does it take to count 10 days?" asked new Attorney General Marc Dann.

Democratic Gov. Ted Strickland's apparently unprecedented decision on his first day in office to recall and veto a bill that Mr. Taft intended to become law has ignited a battle with the Republican-controlled General Assembly and Ohio's business community.

A rare court showdown between two independent branches of government may be in the offing.

"I think lame-duck sessions can and often are times when poorly constructed legislation is passed quickly without appropriate scrutiny," said Mr. Strickland. "If this veto message sends any kind of message regarding my feeling regarding lame-duck actions, so be it."

In one of his final acts, Mr. Taft on Friday said he was so torn on the business-backed Senate Bill 117 that he would neither sign nor veto it, allowing it to become law without his signature. He filed the bill with then-Secretary of State Ken Blackwell, a fellow Republican.

Mr. Taft liked the part of the bill prohibiting broad-based public nuisance lawsuits like those filed by Toledo and Columbus against the lead-based paint industry. But he disliked another capping at $5,000 the amount of noneconomic damages someone could collect in predatory lending and other cases brought under the Ohio Consumer Sales Protection Act.

The Ohio Constitution provides for a bill that is neither signed nor vetoed by a governor to become law within 10 days, excluding Sundays. The section, however, goes on to say that if the General Assembly adjourns, which it did on Dec. 26, the bill would become law in 10 days, with no mention of excluding Sundays.

"The legislature could not unilaterally adjourn and then impact the constitutional rights of the governor," said Mr. Dann. "You don't allow someone to control someone else's constitutional rights unless it's specified."

Mr. Strickland and his new general counsel, former Capital University associate law professor Kent Markus, noted the bill was dated as having been received by the governor on Dec. 27. By their count, the 10-day clock started the next day, Dec. 28, and continued, excluding Sundays, through Monday.

"This does not appear to be an issue that can be resolved upon first glance, but requires considerable additional study," said Ned Foley, former state solicitor and a professor at Ohio State University's Moritz college of law.

"The test of the relative constitution is not sufficiently clear to yield automatic answers," he said.

The General Assembly also contends Mr. Strickland could not take back a bill, signed or not, that the Secretary of State's Office had already accepted.

"It came as a surprise," said House Republican spokesman Karen Tabor. "We don't believe Governor Strickland has the ability to do this. It's our understanding, with Taft choosing the action of inaction, that a decision had nonetheless been made. The time frame, even with the most liberal interpretation of the 10-day rule, expired on Jan. 5."

Jeff Longstreth, executive director of Ohio Citizens Against Lawsuit Abuse, said members of his organization want the law, even if it takes a lawsuit to get it.

"They believe they had a law on the books to protect them from lawsuit abuse, and they believe they've been let down by both administrations," he said. "I feel sorry for the governor. He has clearly been duped by the trial bar."

Contact Jim Provance at:

jprovance@theblade.com,

or 614-221-0496.