Simmons-Harris v. Goff

[This opinion has been published in Ohio Official Reports at 

86 Ohio St.3d 1

.]




SIMMONS-HARRIS ET AL., APPELLEES AND CROSS-APPELLANTS, v. GOFF, SUPT.,
                     ET AL., APPELLANTS AND CROSS-APPELLEES.

        GATTON ET AL., APPELLEES, v. GOFF, SUPT., ET AL., APPELLANTS.
                   [Cite as Simmons-Harris v. Goff, 

1999-Ohio-77

.]
Schools—Current School Voucher Program violates the one-subject rule, Section
         15(D), Article II of the Ohio Constitution—R.C. 3313.977(A)(1)(d) is
         unconstitutional.
     (No. 97-1117—Submitted September 28, 1998—Decided May 27, 1999.)
APPEALS and CROSS-APPEAL from the Court of Appeals for Franklin County, Nos.
                             96APE08-982 and 96APE08-991.
                                    __________________
         {¶ 1} On June 28, 1995, the General Assembly of the state of Ohio adopted
Am.Sub.H.B. No. 117, the biennial operating appropriations bill for fiscal years
1996 and 1997. 146 Ohio Laws, Part I, 898. Among the provisions were those
establishing the Pilot Project Scholarship Program, commonly known as the School
Voucher Program. See R.C. 3313.974 through 3313.979.
         {¶ 2} The School Voucher Program requires the State Superintendent of
Public Instruction to provide scholarships to students residing within Cleveland
City School District.1 R.C. 3313.975(A). Students receiving scholarships may use
them only to attend an “alternative school,” 

id.,

 which is defined as a registered
private school or a public school located in an adjacent school district. R.C.
3313.974(G). The scholarships are ninety percent (for students with family income
below two hundred percent of the maximum income level established by the


1. The Pilot Project Scholarship Program also requires the state superintendent to provide tutorial
assistance grants. R.C. 3313.975(A). As the provisions governing tutorial assistance have not been
challenged in this case, we need not explain or discuss them.
                            SUPREME COURT OF OHIO




superintendent) or seventy-five percent (for students with family income at or
above two hundred percent of that level) of the lesser of the actual tuition charges
or an amount to be established by the superintendent not to exceed $2,500. R.C.
3313.978(A) and (C)(1). The number of scholarships available in a given year is
limited by the amount appropriated by the General Assembly. R.C. 3313.975(B).
       {¶ 3} Scholarship funds are made available in the form of checks. A check
for a student enrolled in a registered private school is payable to the student’s
parents; a check for a student enrolled in an adjacent public school district is
payable to that school district. R.C. 3313.979. Checks for students enrolled in
registered private schools are sent to the school, where the parents are required to
endorse the checks to the school. This mechanism, which is not part of the statutory
scheme, ensures that the scholarship funds are expended on education.
       {¶ 4} On January 10, 1996, Sue Gatton, Millie Waterman, Walter Hertz,
Reverend James Watkins, Robin McKinney, Loretta Heard, Reverend Don
Norenburg, Deborah Schneider, and the Ohio Federation of Teachers (“Gatton”)
filed suit against the state of Ohio and John M. Goff, the state superintendent,
asserting that the School Voucher Program violated various provisions of the Ohio
Constitution and the Establishment Clause of the First Amendment to the United
States Constitution. On January 31, 1996, Doris Simmons-Harris, Sheryl Smith,
and Reverend Steven Behr (“Simmons-Harris”) filed suit against the state
superintendent, challenging the constitutionality of the School Voucher Program.
The cases were consolidated, and the state moved for summary judgment.
Summary judgment was granted. Gatton and Simmons-Harris appealed.
       {¶ 5} The court of appeals declared the School Voucher Program to be
unconstitutional, holding it violative of the Establishment Clause of the First
Amendment to the United States Constitution; the School Funds Clause of Section
2, Article VI of the Ohio Constitution; the Establishment Clause of Section 7,
Article I of the Ohio Constitution; and the Uniformity Clause of Section 26, Article




                                         2
                                  January Term, 1999




II of the Ohio Constitution. The court of appeals also held that the School Voucher
Program did not violate the Thorough and Efficient Clause of Section 2, Article VI
of the Ohio Constitution, or the single-subject rule of Section 15(D), Article II of
the Ohio Constitution.
       {¶ 6} The cause is now before this court pursuant to the allowance of
discretionary appeals and a cross-appeal.
                              __________________
       Robert H. Chanin and John M. West, pro hac vice; Cloppert, Portman,
Sauter, Latinick & Foley, David G. Latanick and William J. Steel; Christopher A.
Lopez, Steven R. Shapiro, Joan M. Englund, Elliot M. Mincberg, Judith Schaeffer
and Steven K. Green, for appellees and cross-appellants Doris Simmons-Harris et
al.
       Benesch, Friedlander, Coplan & Aronoff, L.L.P., Donald J. Mooney, Jr.,
Mark D. Tucker and Roger L. Schantz; Marvin E. Frankel, pro hac vice, and Justine
A. Harris, for appellees Sue Gatton et al.
       Betty D. Montgomery, Attorney General, Jeffrey S. Sutton; Sharon A.
Jennings, Roger F. Carroll and Elizabeth K. Ziewacz, Assistant Attorneys General,
for appellants and cross-appellees John M. Goff and the state of Ohio.
       Squire, Sanders & Dempsey, L.L.P., David J. Young, Scott L. Marrah and
Michael R. Reed; Wegman, Hessler, Vanderburg & O’Toole, David Hessler and
Nathan Hessler; Chester, Willcox & Saxbe and John J. Chester, for appellants and
cross-appellees Hanna Perkins School et al.
       Clint Bolick, pro hac vice, William H. Mellor III and Richard D. Komer;
Reminger & Reminger and Kevin Foley, for appellants and cross-appellees Hope
for Cleveland’s Children et al.
       Melnick & Melnick and Robert R. Melnick; John W. Whitehead and Steven
H. Aden, urging reversal for amicus curiae Rutherford Institute.




                                          3
                            SUPREME COURT OF OHIO




       Zeiger & Carpenter, John W. Zeiger and Marion H. Little, Jr., urging
reversal for amici curiae Citizens for Educational Freedom, Parents Rights
Organization, and Education Freedom Foundation.
       Nathan J. Diament, pro hac vice, urging reversal for amicus curiae Institute
for Public Affairs, Union of Orthodox Jewish Congregations of America.
       Hugh Calkins and John K. Sullivan, amici curiae, urging reversal.
       Miller, Cassidy, Larroca & Lewin, L.L.P., Nathan Lewin and Richard W.
Garnett; and Dennis Rapps, urging reversal for amici curiae the National Jewish
Commission on Law and Public Affairs, Agudath Harabonim of the United States
and Canada, National Council of Young Israel, Rabbinical Alliance of America,
Rabbinical Council of America, Torah Umesorah, National Society of Hebrew Day
Schools, Agudath Israel of America, and Union of Orthodox Jewish Congregations
of America.
       Kevin J. Hasson, Eric W. Treene and Roman P. Storzer, urging reversal for
amicus curiae Becket Fund for Religious Liberty.
       Thomas G. Hungar and Eugene Scalia, pro hac vice, urging reversal for
amici curiae Center for Education Reform, Representative William F. Adolph, Jr.,
American Legislative Exchange Council, Arkansas Policy Foundation, ATOP
Academy, Center for Equal Opportunity, CEO America, Representative Henry
Cuellar, Education Leaders Council, Floridians for Educational Choice, Maine
School Choice Coalition, Reach Alliance, Texas Coalition for Parental Choice in
Education, United New Yorkers for Choice in Education, “I Have a Dream”
Foundation of Washington, D.C., Institute for Transformation of Learning, Liberty
Counsel, Milton & Rose D. Friedman Foundation, Minnesota Business Partnership,
National Federation of Independent Business, North Carolina Education Reform
Foundation, Pennsylvania Manufacturers Association, Putting Children First,
Mayor Bret Schundler, Texas Justice Foundation, and Toussaint Institute.




                                        4
                                January Term, 1999




       Goldstein & Roloff and Morris L. Hawk, urging affirmance for amicus
curiae Ohio Coalition for Equity and Adequacy in School Funding.
       Wolman, Genshaft & Gellman and Benson A. Wolman, urging affirmance
for amicus curiae National Committee for Public Education & Religious Liberty.
       Patrick F. Timmins, Jr., urging affirmance for amicus curiae Coalition of
Rural and Appalachian Schools.
                              __________________
       PFEIFER, J.
       {¶ 7} The court of appeals ruled on six substantive constitutional issues.
We will address each of them in turn. We conclude that the current School Voucher
Program generally does not violate the Establishment Clause of the First
Amendment to the United States Constitution or the Establishment Clause of
Section 7, Article I of the Ohio Constitution, and does not violate the School Funds
Clause of Section 2, Article VI of the Ohio Constitution, the Thorough and Efficient
Clause of Section 2, Article VI of the Ohio Constitution, or the Uniformity Clause
of Section 26, Article II of the Ohio Constitution. We also conclude that the current
School Voucher Program does violate the one-subject rule, Section 15(D), Article
II of the Ohio Constitution. Further, we conclude that former R.C. 3313.975(A)
does violate the Uniformity Clause of Section 26, Article II of the Ohio
Constitution. Accordingly, we affirm in part and reverse in part.
                                          I
       {¶ 8} The First Amendment to the United States Constitution states that
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof * * *.” In Cantwell v. Connecticut (1940), 

310 U.S. 296, 303

, 

60 S.Ct. 900, 903

, 

84 L.Ed. 1213, 1218

, the Supreme Court stated that “[t]he
Fourteenth Amendment has rendered the legislatures of the states as incompetent
as Congress to enact such laws.” Thus, Ohio’s General Assembly is proscribed
from enacting laws respecting an establishment of religion.




                                         5
                            SUPREME COURT OF OHIO




       {¶ 9} In Lemon v. Kurtzman (1971), 

403 U.S. 602

, 

91 S.Ct. 2105

, 

29 L.Ed.2d 745

, the Supreme Court set forth a three-prong test to determine whether
the Establishment Clause has been violated. Various Supreme Court Justices have
challenged the continuing validity of the Lemon test. See Lamb’s Chapel v. Ctr.
Moriches Union Free School Dist. (1993), 

508 U.S. 384, 398-399

, 

113 S.Ct. 2141, 2149-2150

, 

124 L.Ed.2d 352, 364

 (Scalia, J., concurring); Allegheny Cty. v. Am.
Civ. Liberties Union, Greater Pittsburgh Chapter (1989), 

492 U.S. 573, 655-657

,

109 S.Ct. 3086, 3134-3135

, 

106 L.Ed.2d 472, 535

 (Kennedy, J., joined by
Rehnquist, C.J., White and Scalia, JJ., concurring in the judgment in part and
dissenting in part); Westside Community Schools Bd. of Edn. v. Mergens (1990),

496 U.S. 226, 258

, 

110 S.Ct. 2356, 2376

, 

110 L.Ed.2d 191, 221

 (Kennedy, J., joined
by Scalia, J., concurring in part and concurring in the judgment). See, also, Nowak
& Rotunda, Constitutional Law (5 Ed.1995) 1223, Section 17.3, fn. 1.
Nevertheless, Lemon remains the law of the land, and we are constrained to apply
it. In its most recent Establishment Clause case, the Supreme Court used the
principles set forth in the Lemon test, even as it modified the analytical framework
of the three prongs. Agostini v. Felton (1997), 

521 U.S. 203, 223, 230-233

, 

117 S.Ct. 1997, 2010, 2014-2015

, 

138 L.Ed.2d 391, 414, 419-421

.
       {¶ 10} According to Lemon, a statute does not violate the Establishment
Clause when (1) it has a secular legislative purpose, (2) its primary effect neither
advances nor inhibits religion, and (3) it does not excessively entangle government
with religion. Lemon, 

403 U.S. at 612-613

, 

91 S.Ct. at 2111

, 

29 L.Ed.2d at 755

.
       {¶ 11} The first prong of the Lemon test is satisfied when the challenged
statutory scheme was enacted for a secular legislative purpose. On its face, the
School Voucher Program does nothing more or less than provide scholarships to
certain children residing within the Cleveland City School District to enable them
to attend an alternative school. Nothing in the statutory scheme, the record, or the
briefs of the parties suggests that the General Assembly intended any other result.




                                         6
                                January Term, 1999




We conclude that the School Voucher Program has a secular legislative purpose
and that the challenged statutory scheme complies with the first prong of the Lemon
test.
        {¶ 12} The second prong of the Lemon test is satisfied when the primary
effect of a challenged statutory scheme is neither to advance nor to inhibit religion.
Appellees argue that Commt. for Pub. Edn. & Religious Liberty v. Nyquist (1973),

413 U.S. 756

, 

93 S.Ct. 2955

, 

37 L.Ed.2d 948

, compels a holding that the School
Voucher Program unconstitutionally advances religion. In Nyquist, a program that
provided direct money grants to certain nonpublic schools for repair and
maintenance, reimbursed low-income parents for a portion of the cost of private
school tuition, including sectarian school tuition, and granted other parents certain
tax benefits was ruled unconstitutional. The court held that there was no way to
ensure that the monies received pursuant to the tuition-reimbursement portion of
the program, even though received directly by the parents and only indirectly by
the schools, would be restricted to secular purposes. 

Id. at 794

, 

93 S.Ct. at 2976

,

37 L.Ed.2d at 975

. Therefore, according to the court, the program had “the
impermissible effect of advancing the sectarian activities of religious schools.” 

Id. at 794

, 

93 S.Ct. at 2976

, 

37 L.Ed.2d at 975

.
        {¶ 13} The Nyquist holding has been undermined by subsequent case law
that culminated in the court stating, “[W]e have departed from the rule * * * that
all government aid that directly aids the educational function of religious schools
is invalid.” Agostini, 

521 U.S. at 225

, 

117 S.Ct. at 2011

, 

138 L.Ed.2d at 415

. See
Witters v. Washington Dept. of Serv. for the Blind (1986), 

474 U.S. 481

, 

106 S.Ct. 748

, 

88 L.Ed.2d 846

 (state provision of vocational aid to a blind person, who used
it to attend a Christian college, held constitutional). Thus, we continue our analysis
of the impermissible-effect prong of the Lemon test unburdened by the bright-line
Nyquist test advocated by appellees.




                                          7
                             SUPREME COURT OF OHIO




       {¶ 14} In Agostini, the court stated that its understanding of the criteria used
to assess whether aid to religion has an impermissible effect had changed. 

Id.,

521 U.S. at 223

, 

117 S.Ct. at 2010

, 

138 L.Ed.2d at 414

. According to the Agostini court,
the three primary criteria to use to evaluate whether government aid has the effect
of advancing religion are (1) whether the program results in governmental
indoctrination, (2) whether the program’s recipients are defined by reference to
religion, and (3) whether the program creates an excessive entanglement between
government and religion. 

Id. at 230-233

, 

117 S.Ct. at 2014-2015

, 

138 L.Ed.2d at 419-421

. In applying this test, we bear in mind that analysis of Establishment
Clause jurisprudence is not a “legalistic minuet in which precise rules and forms
must govern.” Lemon, 

403 U.S. at 614

, 

91 S.Ct. at 2112

, 

29 L.Ed.2d at 757

.
       {¶ 15} Among the factors to consider to determine whether a government
program results in indoctrination is whether a “symbolic link” between government
and religion is created. Agostini, 

521 U.S. at 224

, 

117 S.Ct. at 2011

, 

138 L.Ed.2d at 415

. It can be argued that the government and religion are linked in this case
because the School Voucher Program results in money flowing from the
government to sectarian schools. We reject the argument, primarily because funds
cannot reach a sectarian school unless the parents of a student decide, independently
of the government, to send their child to that sectarian school. See Zobrest v.
Catalina Foothills School Dist. (1993), 

509 U.S. 1, 8

, 

113 S.Ct. 2462, 2466

, 

125 L.Ed.2d 1, 10

 (government programs that naturally provide benefits to a broad class
of citizens without reference to religion are not invalid merely because sectarian
institutions may also receive an attenuated financial benefit); Witters, 

474 U.S. at 486

, 

106 S.Ct. at 751

, 

88 L.Ed.2d at 854

 (“It is well settled that the Establishment
Clause is not violated every time money previously in the possession of a State is
conveyed to a religious institution”).
       {¶ 16} In Zobrest, 

509 U.S. 1

, 

113 S.Ct. 2462

, 

125 L.Ed.2d 1

, the court
upheld the constitutionality of a state program that provided a sign-language




                                          8
                                January Term, 1999




interpreter for a deaf student attending a sectarian school. The court stated that the
reasoning of Mueller v. Allen (1983), 

463 U.S. 388

, 

103 S.Ct. 3062

, 

77 L.Ed.2d 721

, and Witters, 

474 U.S. 481

, 

106 S.Ct. 748

, 

88 L.Ed.2d 846

, where
Establishment Clause challenges were rejected, applied to Zobrest because the
service at issue “is a general government program that distributes benefits neutrally
* * * without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of
the school the child attends.” Zobrest, 

509 U.S. at 10

, 

113 S.Ct. at 2467

, 

125 L.Ed.2d at 11

, quoting Witters, 

474 U.S. at 487

, 

106 S.Ct. at 752

, 

88 L.Ed.2d at 855

. The School Voucher Program meets this standard. It is a general program,
even if targeted solely at the Cleveland City School District, and its benefits are
available irrespective of the type of alternative school the eligible students attend.
        {¶ 17} Whatever link between government and religion is created by the
School Voucher Program is indirect, depending only on the “genuinely independent
and private choices” of individual parents, who act for themselves and their
children, not for the government. Witters, 

474 U.S. at 487

, 

106 S.Ct. at 752

, 

88 L.Ed.2d at 854

. To the extent that children are indoctrinated by sectarian schools
receiving tuition dollars that flow from the School Voucher Program, it is not the
result of direct government action. Cf. Rosenberger v. Rector & Visitors of Univ.
of Virginia (1995), 

515 U.S. 819

, 

115 S.Ct. 2510

, 

132 L.Ed.2d 700

. Direct
government subsidies to a religious school are clearly unconstitutional. Witters,

474 U.S. at 487

, 

106 S.Ct. at 751

, 

88 L.Ed.2d at 854

. We conclude that the School
Voucher Program does not create an unconstitutional link between government and
religion.
        {¶ 18} No other aspect of the statutory scheme involves the government in
indoctrination. It is difficult to see how the School Voucher Program could result
in governmental indoctrination. No governmental actor is involved in religious
activity, no governmental actor works at a religious setting, and no government-
provided incentive encourages students to attend sectarian schools. We conclude




                                          9
                             SUPREME COURT OF OHIO




that the School Voucher Program does not involve the state in religious
indoctrination.
       {¶ 19} Next we consider whether the School Voucher Program defines its
recipients by reference to religion. There are two specific references to religion in
the statutory scheme. They are directed to ensuring that registered private schools
do not discriminate on the basis of religion or teach hatred on the basis of religion.
R.C. 3313.976(A)(4) and (A)(6). On its face, the statutory scheme does not define
its recipients by reference to religion. That does not end our inquiry, however. We
must also determine whether the statutory scheme has “the effect of advancing
religion by creating a financial incentive to undertake religious indoctrination.”
Agostini, 

521 U.S. at 231

, 

117 S.Ct. at 2014

, 

138 L.Ed.2d at 419

.
       {¶ 20} Most of the beneficiaries of the School Voucher Plan attend sectarian
schools. That circumstance alone does not render the School Voucher Program
unconstitutional if the scholarships are “allocated on the basis of neutral, secular
criteria that neither favor nor disfavor religion, and [are] made available to both
religious and secular beneficiaries on a nondiscriminatory basis.” Agostini, 

521 U.S. at 231

, 

117 S.Ct. at 2014

, 

138 L.Ed.2d at 419

. See Mueller, 

463 U.S. at 401

,

103 S.Ct. at 3070

, 

77 L.Ed.2d at 732

 (“We would be loath to adopt a rule grounding
the constitutionality of a facially neutral law on annual reports reciting the extent
to which various classes of private citizens claimed benefits under the law”). We
conclude that the selection criteria of the School Voucher Program do not all satisfy
this standard.
       {¶ 21} The School Voucher Program provides scholarships to students to
enable them to attend certain schools other than the public school in the district in
which they reside. Registered private schools admit students according to the
following priorities: (1) students enrolled in the previous year, (2) siblings of
students enrolled in the previous year, (3) students residing within the school
district in which the private school is located by lot, (4) students whose parents are




                                         10
                                 January Term, 1999




affiliated with any organization that provides financial support to the school, and
(5) all other applicants by lot. R.C. 3313.977(A). We conclude that priorities (1),
(2), (3), and (5) are neutral and secular and that priority (4) is not.
        {¶ 22} Under priority (4), a student whose parents belong to a religious
group that supports a sectarian school is given priority over other students not
admitted according to priorities (1), (2), and (3). Priority (4) provides an incentive
for parents desperate to get their child out of the Cleveland City School District to
“modify their religious beliefs or practices” in order to enhance their opportunity
to receive a School Voucher Program scholarship. Agostini, 

521 U.S. at 232

, 

117 S.Ct. at 2014

, 

138 L.Ed.2d at 420

. That a student whose parents work for a
company that supports a nonsectarian school would also have priority over students
not admitted according to priorities (1), (2), and (3) does not negate the incentive
to modify religious beliefs or practices. We conclude that priority (4) favors
religion and therefore hold that R.C. 3313.977(A)(1)(d) is unconstitutional. No
other part of the statutory scheme defines the School Voucher Program’s recipients
by reference to religion.
        {¶ 23} Next we must determine whether R.C. 3313.977(A)(1)(d) can be
severed from the rest of the statutory scheme. “The test for determining whether
part of a statute is severable was set forth in Geiger v. Geiger * * *:
        “ ‘(1) Are the constitutional and the unconstitutional parts capable of
separation so that each may be read and may stand by itself?              (2)   Is the
unconstitutional part so connected with the general scope of the whole as to make
it impossible to give effect to the apparent intention of the Legislature if the clause
or part is stricken out? (3) Is the insertion of words or terms necessary in order to
separate the constitutional part from the unconstitutional part, and to give effect to
the former only?’ ” State v. Hochhausler (1996), 

76 Ohio St.3d 455, 464

, 

668 N.E.2d 457, 466-467

, quoting Geiger v. Geiger (1927), 

117 Ohio St. 451, 466

, 

160 N.E. 28, 33

.




                                           11
                             SUPREME COURT OF OHIO




       {¶ 24} The removal of R.C. 3313.977(A)(1)(d) does not render the
remainder of the statutory scheme incapable of standing on its own. 

Id.

 The
removal of R.C. 3313.977(A)(1)(d) does not “make it impossible to give effect to
the apparent intention” of the General Assembly. 

Id.

 The removal of R.C.
3313.977(A)(1)(d) does not necessitate the insertion of words to “separate the
constitutional part from the unconstitutional part.” 

Id.

 R.C. 3313.977(A)(1)(d) is
severable, and we sever it from the remainder of the statutory scheme.
       {¶ 25} Next we examine whether the School Voucher Program has the
effect of advancing religion by excessively entangling church and state. See
Agostini, 

521 U.S. at 233

, 

117 S.Ct. at 2015

, 

138 L.Ed.2d at 420

 (“Entanglement
must be excessive before it runs afoul of the Establishment Clause”). In making
this determination, we must consider “ ‘the character and purposes of the
institutions that are benefited, the nature of the aid that the State provides, and the
resulting relationship between the government and religious authority.’ ” 

Id. at 232

,

117 S.Ct. at 2015

, 

138 L.Ed.2d at 420

, quoting Lemon, 

403 U.S. at 615

, 

91 S.Ct. at 2112

, 

29 L.Ed.2d at 757

.
       {¶ 26} The primary beneficiaries of the School Voucher Program are
children, not sectarian schools. Zobrest, 

509 U.S. at 12

, 

113 S.Ct. at 2469

, 

125 L.Ed.2d at 13

. For purposes of Establishment Clause analysis, the institutions that
are benefited are nonpublic sectarian schools. However, the nonpublic sectarian
schools that admit students who receive scholarships from the School Voucher
Program do not receive the scholarship money directly from the state. The aid
provided by the state is received from the parents and students who make
independent decisions to participate in the School Voucher Program and
independent decisions as to which registered nonpublic school to attend. See
Witters, 

474 U.S. at 488

, 

106 S.Ct. at 752

, 

88 L.Ed.2d at 855

. Given the indirect
nature of the aid, the resulting relationship between the nonpublic sectarian schools




                                          12
                                 January Term, 1999




and the state is attenuated. Zobrest, 

509 U.S. at 8

, 

113 S.Ct. at 2466

, 

125 L.Ed.2d at 10

.
         {¶ 27} To be sure, a sectarian school must register with the state before
enrolled students may avail themselves of the benefits of the School Voucher
Program to attend that school. R.C. 3313.976. However, these requirements are
not onerous, and failure to comply is punished by no more than a revocation of the
school’s registration in the School Voucher Program. 

Id.

 We do not see how this
relationship (which is, at least in part, preexisting, because sectarian schools are
already subject to certain state standards, see R.C. 3301.07; Ohio Adm.Code
Chapter 3301-35) has the effect of excessively entangling church and state. In sum,
there is no credible evidence in the record that the primary effect of the School
Voucher Program is to advance religion.
         {¶ 28} We conclude that the School Voucher Program has a secular
legislative purpose, does not have the primary effect of advancing religion, and
does not excessively entangle government with religion. Accordingly, we hold that
the School Voucher Program does not violate the Establishment Clause of the First
Amendment to the United States Constitution.                  We hold that R.C.
3313.977(A)(1)(d) does violate the Establishment Clause and sever it from the
remainder of the statutory scheme.
                                          II
         {¶ 29} Section 7, Article I of the Ohio Constitution states that “[n]o person
shall be compelled to attend, erect, or support any place of worship, or maintain
any form of worship, against his consent; and no preference shall be given, by law,
to any religious society; nor shall any interference with the rights of conscience be
permitted.” For purposes of the case before us, this section is the approximate
equivalent of the Establishment Clause of the First Amendment to the United States
Constitution. See State ex rel. Heller v. Miller (1980), 

61 Ohio St.2d 6, 8

, 

15 O.O.3d 3, 4

, 

399 N.E.2d 66, 67

; S. Ridge Baptist Church v. Indus. Comm. (S.D.Ohio




                                          13
                             SUPREME COURT OF OHIO




1987), 

676 F.Supp. 799, 808

. This court has had little cause to examine the
Establishment Clause of our own Constitution and has never enunciated a standard
for determining whether a statute violates it. See Protestants & Other Americans
United for Separation of Church & State v. Essex (1971), 

28 Ohio St.2d 79

, 

57 O.O.2d 263

, 

275 N.E.2d 603

 (federal Establishment Clause jurisprudence
discussed; Section 7, Article I of the Ohio Constitution applied but not discussed).
Today we do so by adopting the elements of the three-part Lemon test. We do this
not because it is the federal constitutional standard, but rather because the elements
of the Lemon test are a logical and reasonable method by which to determine
whether a statutory scheme establishes religion.
       {¶ 30} There is no reason to conclude that the Religion Clauses of the Ohio
Constitution are coextensive with those in the United States Constitution, though
they have at times been discussed in tandem. See Pater v. Pater (1992), 

63 Ohio St.3d 393

, 

588 N.E.2d 794

; In re Milton (1987), 

29 Ohio St.3d 20

, 29 OBR 373,

505 N.E.2d 255

. The language of the Ohio provisions is quite different from the
federal language. Accordingly, although we will not on this day look beyond the
Lemon-Agostini framework, neither will we irreversibly tie ourselves to it. See
Arnold v. Cleveland (1993), 

67 Ohio St.3d 35, 42

, 

616 N.E.2d 163, 169

 (Ohio
Constitution is a document of independent force). We reserve the right to adopt a
different constitutional standard pursuant to the Ohio Constitution, whether because
the federal constitutional standard changes or for any other relevant reason.
       {¶ 31} We reiterate the reasoning discussed during our analysis of the
federal constitutional standard, and although we now analyze pursuant to the Ohio
Constitution, we not surprisingly reach the same conclusion. See Michigan v. Long
(1983), 

463 U.S. 1032, 1040-1041

, 

103 S.Ct. 3469, 3476

, 

77 L.Ed.2d 1201, 1214

.
We conclude that the School Voucher Program does not have an impermissible
legislative purpose or effect and does not excessively entangle the state and




                                         14
                                 January Term, 1999




religion. The School Voucher Program does not violate Section 7, Article I of the
Ohio Constitution.
        {¶ 32} Section 2, Article VI of the Ohio Constitution states that “no
religious or other sect, or sects, shall ever have any exclusive right to, or control of,
any part of the school funds of this state.” While this clause has seldom been
discussed by this court, we did state in Protestants & Other Americans United for
Separation of Church & State, 

28 Ohio St.2d at 88

, 

57 O.O.2d at 268

, 

275 N.E.2d at 608

, that “the sole fact that some private schools receive an indirect benefit from
general programs supported at public expense does not mean that such schools have
an exclusive right to, or control of, any part of the school funds of this state.” As
discussed previously, no money flows directly from the state to a sectarian school
and no money can reach a sectarian school based solely on its efforts or the efforts
of the state. Sectarian schools receive money that originated in the School Voucher
Program only as the result of independent decisions of parents and students.
Accordingly, we conclude that the School Voucher Program does not result in a
sectarian school having an “exclusive right to, or control of, any part of the school
funds of this state.” The School Voucher Program does not violate this clause of
Section 2, Article VI of the Ohio Constitution.
        {¶ 33} Section 2, Article VI of the Ohio Constitution also states that “[t]he
general assembly shall make such provisions, by taxation, or otherwise, as, with the
income arising from the school trust fund, will secure a thorough and efficient
system of common schools throughout the State.” In DeRolph v. State (1997), 

78 Ohio St.3d 193

, 

677 N.E.2d 733

, this court held that the state has an obligation to
establish a “thorough and efficient system of common schools.” It can be argued
that implicit within this obligation is a prohibition against the establishment of a
system of uncommon (or nonpublic) schools financed by the state.
        {¶ 34} Private schools have existed in this state since before the
establishment of public schools. They have in the past provided and continue to




                                           15
                                 SUPREME COURT OF OHIO




provide a valuable alternative to the public system. However, their success should
not come at the expense of our public education system or our public school
teachers. We fail to see how the School Voucher Program, at the current funding
level, undermines the state’s obligation to public education.2 The School Voucher
Program does not violate this clause of Section 2, Article VI of the Ohio
Constitution.
                                              III
        {¶ 35} Section 26, Article II of the Ohio Constitution, the Uniformity
Clause, states that “[a]ll laws of a general nature, shall have a uniform operation
throughout the State * * *.” To determine whether the School Voucher Program
violates the Uniformity Clause, we must ascertain “(1) whether the statute is a law
of a general or special nature, and (2) whether the statute operates uniformly
throughout the state.” Desenco, Inc. v. Akron (1999), 

84 Ohio St.3d 535, 541

, 

706 N.E.2d 323, 330

.
        {¶ 36} A subject is general “ ‘if the subject does or may exist in, and affect
the people of, every county, in the state.’ ” 

Id. at 542

, 

706 N.E.2d at 330

, quoting
Hixson v. Burson (1896), 

54 Ohio St. 470

, 481, 

43 N.E. 1000

, 1002. The parties
agree that schools are a subject of general nature. Further, that is the law of this
state. See State ex rel. Wirsch v. Spellmire (1902), 

67 Ohio St. 77

, 

65 N.E. 619

,
paragraph two of the syllabus (“The subject-matter of schools * * * is of a general
nature”).    Because the School Voucher Program is of a general nature, the
Uniformity Clause applies.
        {¶ 37} We therefore must determine whether the School Voucher Program
operates uniformly throughout the state. The General Assembly amended R.C.
3313.975(A), effective June 30, 1997. Former R.C. 3313.975(A) stated that the


2. It is possible that a greatly expanded School Voucher Program or similar program could damage
public education. Such a program could be subject to a renewed constitutional challenge.




                                              16
                                  January Term, 1999




School Voucher Program was limited to “one school district that, as of March 1995,
was under a federal court order requiring supervision and operational management
of the district by the state superintendent.” (146 Ohio Laws, Part I, 1183.) We
agree with the court of appeals and find that former R.C. 3313.975(A) violates the
Uniformity Clause because it can only apply to one school district.
          {¶ 38} For purposes of judicial economy, we will also rule on the
constitutionality of the current R.C. 3313.975(A), as amended on June 30, 1997.
R.C. 3313.975(A) now reads that the School Voucher Program is limited to “school
districts that are or have ever been under a federal court order requiring supervision
and operational management of the district by the state superintendent.” It is clear
that the current School Voucher Program does not apply to the vast majority of the
school districts in the state. At the time this case was filed, the School Voucher
Program was in effect only within the Cleveland City School District. However,
that does not mean that the School Voucher Program cannot satisfy the Uniformity
Clause.
          {¶ 39} In State ex rel. Stanton v. Powell (1924), 

109 Ohio St. 383, 385

, 

142 N.E. 401

, this court stated: “Section 26, Art. II of the Constitution [the Uniformity
Clause] was not intended to render invalid every law which does not operate upon
all persons, property or political subdivisions within the state. It is sufficient if a
law operates upon every person included within its operative provisions, provided
such operative provisions are not arbitrarily and unnecessarily restricted. And the
law is equally valid if it contains provisions which permit it to operate upon every
locality where certain specified conditions prevail.         A law operates as an
unreasonable classification where it seeks to create artificial distinctions where no
real distinction exists.” This court has also stated that “a statute is deemed to be
uniform despite applying to only one case so long as its terms are uniform and it
may apply to cases similarly situated in the future.” State ex rel. Zupancic v.
Limbach (1991), 

58 Ohio St.3d 130, 138

, 

568 N.E.2d 1206, 1213

.




                                           17
                                SUPREME COURT OF OHIO




        {¶ 40} The General Assembly amended R.C. 3313.975(A) after the court of
appeals below determined that former R.C. 3313.975(A) violated the Uniformity
Clause. In amending this statute, the General Assembly was likely guided by our
Zupancic decision. In Zupancic, we held that a statute that differentiated between
taxing districts based on whether they contained electric power plants having initial
production equipment costs in excess of $1 billion did not violate the Uniformity
Clause, even though at the time the statute was enacted only one electric power
plant had production equipment whose initial cost exceeded $1 billion. The court
reasoned that “[a]lthough the statute may presently apply to one particular electric
power plant with an initial cost exceeding $1 billion, there is nothing within the Act
itself to prevent its prospective operation upon any electric power plant similarly
situated throughout the state.” Zupancic, 

58 Ohio St.3d at 138

, 

568 N.E.2d at 1213

.
        {¶ 41} The same is true in this case. The Cleveland City School District is
the only school district that is currently eligible for the School Voucher Program.
However, the statutory limitation, as amended, does not prohibit similarly situated
school districts from inclusion in the School Voucher Program in the future. R.C.
3313.975(A).
        {¶ 42} The General Assembly had a rational basis for enacting the School
Voucher Program, which relates to a statewide interest, and for specifically
targeting the Cleveland City School District, which is the largest in the state and
arguably the one most in need of state assistance.3 Further, the School Voucher
Program is a pilot program, which suggests that the General Assembly is
experimenting to determine whether the voucher concept is beneficial or worthy of
further implementation. Though the School Voucher Program is currently limited




3. Our conclusion might be different if a program benefited only the district of a particularly
powerful legislator.




                                              18
                                 January Term, 1999




to one school district, we conclude that the General Assembly did not arbitrarily or
unnecessarily restrict the operative provisions of the program.
        {¶ 43} The distinction between districts that satisfy the conditions and those
that do not is not artificial. It is clear from the record that the Cleveland City School
District is in a crisis related to the supervision order. The General Assembly took
extraordinary measures to attempt to alleviate an extraordinary situation. That
other school districts also have significant problems does not mean the distinction
between school districts under state supervision by order of a federal court and other
school districts is not real. The distinction is at least as real as the distinction
between electric power plants with initial production equipment costs exceeding $1
billion and those with initial production equipment costs of less that $1 billion. See
Zupancic.
        {¶ 44} We conclude that the School Voucher Program operates uniformly
throughout the state because it operates upon every person included within its
operative provisions and those operative provisions are not arbitrarily or
unnecessarily restrictive.
        {¶ 45} The School Voucher Program, although extremely limited in its
current application, is a law of a general nature and operates uniformly throughout
the state. Accordingly, it does not violate the Uniformity Clause.




                                           19
                                 SUPREME COURT OF OHIO




                                              IV
        {¶ 46} Section 15(D), Article II of the Ohio Constitution states that “[n]o
bill shall contain more than one subject, which shall be clearly expressed in its
title.” This court has stated that the one-subject rule “is merely directory in nature.”
State ex rel. Dix v. Celeste (1984), 

11 Ohio St.3d 141

, 11 OBR 436, 

464 N.E.2d 153

, syllabus. However, the court elaborated by stating that “when there is an
absence of common purpose or relationship between specific topics in an act and
when there are no discernible practical, rational or legitimate reasons for combining
the provisions in one act, there is a strong suggestion that the provisions were
combined for tactical reasons, i.e., logrolling. Inasmuch as this was the very evil
the one-subject rule was designed to prevent, an act which contains such unrelated
provisions must necessarily be held to be invalid in order to effectuate the purposes
of the rule.” 

Id. at 145

, 11 OBR at 440, 

464 N.E.2d at 157

. See Hoover v. Franklin
Cty. Bd. of Commrs. (1985), 

19 Ohio St.3d 1, 6

, 19 OBR 1, 5, 

482 N.E.2d 575, 580

.
The court reiterated this standard when it stated, “In order to find a legislative
enactment violative of the one-subject rule, a court must determine that various
topics contained therein lack a common purpose or relationship so that there is no
discernible practical, rational or legitimate reason for combining the provisions in
one Act.” Beagle v. Walden (1997), 

78 Ohio St.3d 59, 62

, 

676 N.E.2d 506, 507

.
        {¶ 47} The first provision of Am.Sub.H.B. No. 117, as enacted, R.C. 3.15,
concerns the residency of certain elected officials. Baldwin’s Ohio Legislative
Service (1995) L-622.4 The second provision, R.C. 9.06, which enables certain
government entities to contract for the private operation of correctional facilities, is
not related to the first provision. 146 Ohio Laws, Part I, 906. The third provision,
R.C. 101.34, which declares some files of the joint legislative ethics committee to


4. Due to a printing error, the amendment to R.C. 3.15 does not appear in 146 Ohio Laws, Part I,
905, which repeats page 904.




                                              20
                                      January Term, 1999




be confidential, is not related to either of the first two provisions. Id. at 911. The
fourth provision, R.C. 102.02, which requires candidates for elective office to file
financial statements with the Ethics Commission, is not related to any of the first
three provisions. Id. at 913. The fifth provision, R.C. 103.31, which creates a joint
legislative committee on federal funds, and the sixth provision, R.C. 103.32, which
requires certain state agencies to submit proposals to that committee, are not related
to any of the first four provisions. Id. at 920-921. It is obvious that none of the
first six provisions of Am.Sub.H.B. No. 117 has anything to do with the School
Voucher Program. Am.Sub.H.B. No. 117 contains many other examples of topics
that “lack a common purpose or relationship.”5 Am.Sub.H.B. No. 117 contained
three hundred eighty-three amendments in twenty-five different titles of the
Revised Code, ten amendments to renumber, and eighty-one new sections in sixteen
different titles of the Revised Code. Baldwin’s Ohio Legislative Service (1995) L-
621-622.
         {¶ 48} There is considerable disunity in subject matter between the School
Voucher Program and the vast majority of the provisions of Am.Sub.H.B. No. 117.
Cf. State ex rel. Ohio AFL-CIO v. Voinovich (1994), 

69 Ohio St.3d 225, 229

, 

631 N.E.2d 582, 586

; Beagle, 

78 Ohio St.3d at 62

, 

676 N.E.2d at 507

. Given the
disunity, we are convinced that the General Assembly’s consideration of the one-
subject rule was based on this court’s pre-Dix holdings, virtually total deference to
the General Assembly. See Pim v. Nicholson (1856), 

6 Ohio St. 176

; State ex rel.
Atty. Gen. v. Covington (1876), 

29 Ohio St. 102

, paragraph seven of the syllabus.
Despite the “directory” language of Dix, the recent decisions of this court make it


5. For example, R.C. 3721.011 addresses skilled nursing care. 146 Ohio Laws, Part I, 1329-1333.
R.C. 3721.012 addresses risk agreements between residential care facilities and residents of
residential care facilities. Id. at 1333. R.C. 3721.02 addresses the inspection of nursing homes. Id.
at 1334. R.C. 3721.04 requires the public health council to adopt rules governing the operation of
nursing homes. Id. at 1335. R.C. 3721.05 requires operators of nursing homes to obtain a license.
Id. at 1336.




                                                 21
                                   SUPREME COURT OF OHIO




clear that we no longer view the one-subject rule as toothless. Hoover; State ex
rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 

62 Ohio St.3d 145

, 

580 N.E.2d 767

; Ohio AFL-CIO. The one-subject rule is part of our Constitution and therefore
must be enforced.6
         {¶ 49} We recognize that appropriations bills, like Am.Sub.H.B. No. 117,
are different from other Acts of the General Assembly. Appropriations bills, of
necessity, encompass many items, all bound by the thread of appropriations.
Accordingly, even though many of the provisions in Am.Sub.H.B. No. 117 appear
unrelated, we will restrict our analysis to the School Voucher Program, the only
part of H.B. No. 117 whose constitutionality is challenged in the case before us.
         {¶ 50} The School Voucher Program allows parents and students to receive
funds from the state and expend them on education at nonpublic schools, including
sectarian schools. It is a significant, substantive program. Nevertheless, the School
Voucher Program was created in a general appropriations bill consisting of over
one thousand pages, of which it comprised only ten pages. See 146 Ohio Laws,
Part I, 898-1970. The School Voucher Program, which is leading-edge legislation,
was in essence little more than a rider attached to an appropriations bill. Riders are
provisions that are included in a bill that is “ ‘so certain of adoption that the rider
will secure adoption not on its own merits, but on [the merits of] the measure to
which it is attached.’ ” Dix, 

11 Ohio St.3d at 143

, 11 OBR at 438, 

464 N.E.2d at 156

, quoting Ruud, “No Law Shall Embrace More Than One Subject” (1958), 42


6. In dissent, Judge Baird relies heavily on Pim v. Nicholson (1856), 

6 Ohio St. 176

. Pim was the
controlling authority on this subject through this court’s decision in Dix, 

11 Ohio St.3d 141

, 11 OBR
436, 

464 N.E.2d 153

. However, at this time, it is clearly established that bills enacted by the General
Assembly may be challenged “on the basis that the original bill contained more than one subject in
violation of Section 15(D), Article II of the Ohio Constitution.” Hoover, 

19 Ohio St.3d at 6

, 19
OBR at 5, 

482 N.E.2d at 580

. In Hoover, this court went on to state that “the court of appeals held
that no enactment may be attacked on this basis, as the ‘one-subject’ provision of Section 15(D) has
been consistently viewed as merely directory rather than mandatory. We disagree and reverse.” 

Id.

Today, we adhere to the holdings of Dix and its progeny, rather than return to the one-hundred-
forty-three-year old Pim.




                                                  22
                                January Term, 1999




Minn.L.Rev. 389, 391. Riders were one of the problems the Dix court was
concerned about. 

Id.

 The danger of riders is particularly evident when a bill as
important and likely of passage as an appropriations bill is at issue. See Ruud at
413 (“[T]he general appropriation bill presents a special temptation for the
attachment of riders. It is a necessary and often popular bill which is certain of
passage”).
       {¶ 51} Another significant aspect of the one-subject rule, according to the
Dix court, is that “[b]y limiting each bill to one subject, the issues presented can be
better grasped and more intelligently discussed.” Dix, 

11 Ohio St.3d at 143

, 11
OBR at 438, 

464 N.E.2d at 156

. This principle is particularly relevant when the
subject matter is inherently controversial and of significant constitutional
importance.
       {¶ 52} This court has stated that “[t]he mere fact that a bill embraces more
than one topic is not fatal, as long as a common purpose or relationship exists
between the topics. However, 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 the result of logrolling * * *.” Hoover, 

19 Ohio St.3d at 6

, 19 OBR at 5,

482 N.E.2d at 580

. As discussed previously, there is a “blatant disunity between”
the School Voucher Program and most other items contained in Am.Sub.H.B. No.
117. Further, we have been given “no rational reason for their combination,” which
strongly suggests that the inclusion of the School Voucher Program within
Am.Sub.H.B. No. 117 was for tactical reasons. Dix, 

11 Ohio St.3d at 145

, 11 OBR
at 440, 

464 N.E.2d at 157

.
       {¶ 53} Given the factors discussed above, we conclude that creation of a
substantive program in a general appropriations bill violates the one-subject rule.
Accordingly, the School Voucher Program must be stricken from Am.Sub.H.B. No.
117. See Ohio AFL-CIO, 

69 Ohio St.3d at 247

, 

631 N.E.2d at 598-599

 (Pfeifer, J.,
concurring); Hinkle, 

62 Ohio St.3d at 147-149

, 

580 N.E.2d at 769-770

.




                                          23
                             SUPREME COURT OF OHIO




       {¶ 54} Our holding does not overrule Dix; indeed we have relied on its
reasoning extensively. Instead, we modify Dix to the extent necessary to ensure
that it is not read to support the position that a substantive program created in an
appropriations bill is immune from a one-subject-rule challenge as long as funds
are also appropriated for that program.
       {¶ 55} In order to avoid disrupting a nearly completed school year, our
holding is stayed through the end of the current fiscal year, June 30, 1999.
                                                          Judgment affirmed in part
                                                               and reversed in part.
       MOYER, C.J., concurs.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in judgment only.
       BAIRD and W. YOUNG, JJ., concur in part and dissent in part.
       WILLIAM R. BAIRD, J., of the Ninth Appellate District, sitting for COOK, J.
       WILLIAM W. YOUNG, J., of the Twelfth Appellate District, sitting for
LUNDBERG STRATTON, J.
                               __________________
       DOUGLAS, J., concurring in judgment only.
       {¶ 56} I concur that the School Voucher Program, as enacted by the General
Assembly, violates the one-subject rule, Section 15(D), Article II of the Ohio
Constitution. With regard to the rest of the majority opinion, while there is much I
agree with, I find a number of the other assertions by the majority to be advisory in
nature and, accordingly, while I concur, I do so only in the judgment.
       {¶ 57} I also write separately to address the dissent. I do so with regard to
four matters.
       {¶ 58} I recognize that the majority opinion discusses the dissent in footnote
6. I believe that more needs to be said regarding the reliance by the dissenters on
Pim v. Nicholson (1856), 

6 Ohio St. 176

. For whatever reason, the dissenters fail
to quote from Pim that court’s reasoning for holding as it did. Pim also says that




                                          24
                                January Term, 1999




“[w]e are therefore of the opinion, that in general the only safeguard against the
violation of these rules [the one-subject rule] of the houses, is their regard for, and
their oath to support the constitution of the state. We say in general the only
safeguard: for whether a manifestly gross and fraudulent violation of these rules
might authorize the court to pronounce a law unconstitutional, it is unnecessary to
determine. It is to be presumed that no such case will ever occur.” (Emphasis
added.) 

Id. at 181

. Thus, the Pim court, in the year 1856, found it unnecessary to
determine, in that case, whether a violation of the one-subject rule did or would
ever occur, and the court operated on the presumption that such a violation would
never occur. It is, however, now apparent that a number of violations of the one-
subject rule have occurred, and we have had brought to us a number of cases, like
the case now before us, complaining of the persistent violation of the rule. Even
the dissenters herein tacitly acknowledge this by adroitly avoiding any real
discussion of the issue. Given such pronouncements as are contained in Appendix
A, attached [Appendix A is not included in the Internet version of this case], we
have a constitutional duty to no longer ignore the practice.
       {¶ 59} The dissenters also say that the majority “has concluded that the
School Voucher Program is unconstitutional merely because Am.Sub.H.B. No. 117
contained unrelated subjects.”      (Emphasis added.)       “Merely” is defined as
“[w]ithout including anything else; purely; only; solely; absolutely; wholly.”
(Emphasis added.) Black’s Law Dictionary (6 Ed.1990) 988. Here the dissenters
are correct. The School Voucher Program absolutely (merely) does violate the
Constitution and our oaths require us to say so when that is the fact.
       {¶ 60} Further, the dissenters say that “[t]his court recently observed the
distinction between ‘directory’ and ‘mandatory,’ and refused to render void a
judicial decision made in violation of a procedural statutory provision it deemed
directory. In re Davis (1999), 

84 Ohio St.3d 520

, 

705 N.E.2d 1219

. The statute at
issue required a juvenile court to enter judgment within seven days of a




                                          25
                             SUPREME COURT OF OHIO




dispositional hearing.” (Emphasis added.) We, of course, in the case now before
us are not deciding a statutory issue. We are called upon, herein, to interpret a
clear, unambiguous and absolute provision of our Ohio Constitution, to wit, “[n]o
bill shall contain more than one subject, which shall be clearly expressed in its
title.” The difference should be obvious. Need we be reminded that it was Chief
Justice John Marshall, as early as March 7, 1819, who explained for all of us who
would follow that “[i]n considering this question, then, we must never forget that it
is a constitution we are expounding”? (Emphasis sic.) McCulloch v. Maryland
(1819), 

4 Wheat. 316

, 

17 U.S. 316, 407

, 

4 L.Ed. 579, 601

.
        {¶ 61} Finally, the dissenters, in perhaps the most disturbing part of the
dissent, say that “[t]he salutary effect of [judicial refusal to intervene] is the
disentanglement of the courts from the procedural business of the legislature,
reserving to the citizens the oversight of the legislature without unnecessary judicial
intrusion.” Should that proposition be accepted by a majority of this court, then the
message would go forth to all of the judges of this state that they should become
disentangled from the “business” of the legislature. In one fell swoop we would be
turning our backs on Marbury v. Madison (1803), 

1 Cranch 137

, 

5 U.S. 137

, 

2 L.Ed. 60

, decades and decades of cases following the doctrine of judicial review and,
even, Alexander Hamilton’s reply to Brutus (Robert Yates) in Federalist, No. 78.
        {¶ 62} Fulfilling our obligations as a court does not give us any practical or
real omnipotence. We are simply meeting the obligations and exercising the power
mandated and conferred by the United States and Ohio Constitutions and sustaining
the principle of separation of powers. We must always remember that the power
of the people expressed through our Constitutions is superior to the authority of
both the legislative and judicial branches of government. While some might call
exercise of duty “intrusion,” others would define it as “commitment.” I ascribe to
the latter.
        {¶ 63} Accordingly, I concur in the judgment of the majority.




                                          26
                                January Term, 1999




       RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion.
                                __________________
       BAIRD, J., concurring in part and dissenting in part.
       {¶ 64} I respectfully dissent from that portion of the majority opinion that
determines that the School Voucher Program must be stricken from Am.Sub.H.B.
No. 117 because it violates the one-subject rule.
       {¶ 65} The one-subject rule “was incorporated into the constitution, for the
purpose of making it a permanent rule of the houses, and to operate only upon bills
in their progress through the general assembly. It is directory only, and the
supervision of its observance must be left to the general assembly.” Pim v.
Nicholson (1856), 

6 Ohio St. 176

, paragraph one of the syllabus. The one-subject
rule is not applicable to Acts. 

Id. at 180

. It “was imposed to facilitate orderly
legislative procedure, not to hamper or impede it.” (Emphasis sic.) State ex rel.
Dix v. Celeste (1984), 

11 Ohio St.3d 141, 143

, 11 OBR 436, 438, 

464 N.E.2d 153, 156

.
       {¶ 66} The majority acknowledges that the one-subject rule is directory but
not mandatory but deviates from nearly one hundred fifty years of precedent as to
the import of the terms “directory” and “mandatory.” A legislative action taken in
violation of a mandatory constitutional provision renders the enactment void, while
violation of a directory provision does not. See State ex rel. Atty. Gen. v. Covington
(1876), 

29 Ohio St. 102, 117

.
       {¶ 67} This court recently observed the distinction between “directory” and
“mandatory,” and refused to render void a judicial decision made in violation of a
procedural statutory provision it deemed directory. In re Davis (1999), 

84 Ohio St.3d 520

, 

705 N.E.2d 1219

. The statute at issue required a juvenile court to enter
judgment within seven days of a dispositional hearing. The judgment at issue was
entered seventeen months after the hearing. This court determined that the remedy
for violation of the directory statute was enforcement of its provisions through a




                                         27
                             SUPREME COURT OF OHIO




writ of procedendo, rather than nullification of the order. Id. at 523, 705 N.E.2d at
1222.
        {¶ 68} Today’s majority ruling establishes that the sort of deference
accorded by this court to judicial tribunals that fail to follow directory procedural
guidelines is not necessarily available to the General Assembly. It has concluded
that the School Voucher Program is unconstitutional merely because Am.Sub.H.B.
No. 117 contained unrelated subjects. This, according to the majority, “suggests”
logrolling by members of the General Assembly, although the record is devoid of
any evidence of logrolling. There is no evidence to suggest that senators or
representatives were unaware that the School Voucher Program was a part of
Am.Sub.H.B. No. 117 when they voted, no evidence that someone surreptitiously
attached the School Voucher Program as a rider to the bill on the eve of the vote,
and no evidence of fraud or conspiracy by and among members of the General
Assembly relative to passage of the bill or any of its components.
        {¶ 69} As a result of today’s majority opinion, there are now, in effect, three
categories of constitutional provisions governing the General Assembly:
“directory,” “mandatory,” and “directory but void if determined by a court to
contain more than one subject.” The majority relies on Dix v. Celeste to support its
reasoning but ignores the Dix syllabus law, which requires that a bill be “a
manifestly gross and fraudulent violation” of the one-subject rule before it will be
invalidated on constitutional grounds. Accord Beagle v. Walden (1997), 

78 Ohio St.3d 59, 62

, 

676 N.E.2d 506, 507

. The requirement that a bill be a manifestly gross
and fraudulent violation of the one-subject rule, when read together with earlier
decisions of this court, suggests a two-part inquiry when analyzing whether a bill
must be stricken as violative of the one-subject rule. The first step is what the
majority today views as the only step: whether the bill contained a “blatant disunity
between topics.” The second step is whether evidence shows that passage of the
bill was “a manifestly gross and fraudulent violation” of the one-subject rule. Dix,




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                                January Term, 1999

11 Ohio St.3d 141

, 11 OBR 436, 

464 N.E.2d 153

, at the syllabus. By eliminating
this second step, the majority has apparently concluded that violation of the one-
subject rule will be determined solely by the numbers. If two subjects can be
discerned, even within the context of an appropriations bill that is by its nature a
multi-subject bill, a portion of the bill may be challenged, and proclaimed void,
even years after it has been enacted and implemented. Plaintiffs need not plead
fraud, with or without particularity, and they need not prove fraud, in order to have
a statute stricken. Moreover, because the majority has opted to strike only a portion
of Am.Sub.H.B. No. 117, and not the bill itself, multiple litigants can require this
court to repeat today’s exercise, again and again, until all but one subject remains.
       {¶ 70} By today’s majority ruling, Ohio’s judicial branch of government
has intruded on its legislative branch on the basis of an inference of logrolling (in
the absence of evidence of logrolling) and has invalidated an otherwise
constitutional law on the basis of a technical procedural infraction. At one time,
such intrusions by one branch of a government into the business of another were
taken only with extreme caution and only to protect great public or private
constitutional interests. The United States Supreme Court, for example, was
willing to intrude upon the executive branch of the United States government by
creation of the exclusionary rule only because, not to do so, would have rendered
the Fourth Amendment’s protection against illegal searches and seizures to be of
no value. Weeks v. United States (1914), 

232 U.S. 383, 393

, 

34 S.Ct. 341, 344

, 

58 L.Ed. 652, 656

.
       {¶ 71} When this court held in Dix that the one-subject rule was “merely
directory,” it stated that, rather than “disparag[ing] the constitutional provision[,]”
it had “simply accorded appropriate respect to the General Assembly, a coordinate
branch of the state government.” Dix, 

11 Ohio St.3d at 144

, 11 OBR at 439, 

464 N.E.2d at 157

. The salutary effect of such reasoning is the disentanglement of the




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courts from the procedural business of the legislature, reserving to the citizens the
oversight of the legislature without unnecessary judicial intrusion.
       W. YOUNG, J., concurs in the foregoing opinion.
                              __________________




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