State ex rel. Bray v. Russell ( 2000 )

Pfeifer, J.

This case involves a facial challenge to the constitutionality of R.C. 2967.11, which was originally raised in the court of appeals by appellant Bray and appellee Wfhite, and in petitioner Haddad’s petition for habeas corpus. We conclude that R.C. 2967.11 violates the constitutional doctrine of separation of powers. Accordingly, we need not address whether R.C. 2967.11 violates equal protection or due process.

This court has repeatedly affirmed that the doctrine of separation of powers is “implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.” S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 158-159, 28 OBR 250, 251, 503 N.E.2d 136, 138; State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31. See State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 475, 715 N.E.2d 1062, 1085; State v. Hochhausler (1996), 76 Ohio St.3d 455, 463, 668 N.E.2d 457, 465-466.

“The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.” State ex rel. Bryant v. Akron Metro. Park Dist. (1929), 120 Ohio St. 464, 473, 166 N.E. 407, 410. See, also, Knapp v. Thomas (1883), 39 Ohio St. 377, 391-392; State ex rel. Finley v. Pfeiffer (1955), 163 Ohio St. 149, 56 O.O. 190, 126 N.E.2d 57, paragraph one of the syllabus.

The state argues that the doctrine of separation of powers “applies only when there is some interference with another governmental branch.” See State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 38, 661 N.E.2d 187, 193. See, also, Krent, Separating the Strands in Separation of Powers Controversies (1988), 74 Va.L.Rev. 1253 (discussion of functionalist approach advocated by the state); Vine, Constitutionalism and the Separation of Powers (2 Ed.1998) 402. We disagree. The language relied upon by the state’s argument was dictum and the underlying concept was not developed in Plain Dealer, prior to Plain Dealer, or subsequent to Plain Dealer.

Further, the very purpose of the doctrine of separation of powers undercuts the argument. The people adopted the Ohio Constitution, not the legislative, executive, or judicial branches of government. In Zanesville v. Zanesville Tel. & Tel. Co. (1900), 63 Ohio St. 442, 451, 59 N.E. 109, 110, this court stated: “The distribution of the powers of government, legislative, executive and judicial, among three co-ordinate branches, separate and independent of each other, is a fundamental feature of our system of constitutional government. In the preservation of these distinctions is seen, by many able jurists, the preservation of all the rights, civil and political, of the individual, secured by our free form of government; and it is held that any encroachment by one upon the other is a step in the direction of arbitrary power.” Though the judgment in Zanesville was reversed (1901), 64 Ohio St. 67, 59 N.E. 781, we adhere to the principles espoused therein. The reason the legislative, executive, and judicial powers are separate and balanced is to protect the people, not to protect the various branches of government.

R.C. 2967.11(B) states: “As part of a prisoner’s sentence, the parole board may punish a violation committed by the prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance with this section. * * * If a prisoner’s stated prison term is extended under this section, the time by which it is so extended shall be referred to as ‘bad time.’ ” A “violation” is defined as “an act that is a criminal offense under the law of this state or the United States, whether or not a person is prosecuted for the commission of the offense.” R.C. 2967.11(A).

Other sections in R.C. 2967.11 set forth the procedures to be followed to determine whether a “violation,” a crime, has been committed. In short, R.C. 2967.11(C), (D), and (E) enable the executive branch to prosecute an inmate for a crime, to determine whether a crime has been committed, and to impose a sentence for that crime. This is no less than the executive branch’s acting as judge, prosecutor, and jury. R.C. 2967.11 intrudes well beyond the defined role of the executive branch as set forth in our Constitution.

In our constitutional scheme, the judicial power resides in the judicial branch. Section 1, Article IV of the Ohio Constitution. The determination of guilt in a criminal matter and the sentencing of a defendant convicted of a crime are solely the province of the judiciary. See State ex rel. Atty. Gen. v. Peters (1885), 43 Ohio St. 629, 648, 4 N.E. 81, 86. See, also, Stanton v. Tax Comm. (1926), 114 Ohio St. 658, 672, 151 N.E. 760, 764 (“the primary functions of the judiciary are to declare what the law is and to determine the rights of parties conformably thereto”); Fairview v. Giffee (1905), 73 Ohio St. 183, 190, 76 N.E. 865, 867 (“It is indisputable that it is a judicial function to hear and determine a controversy between adverse parties, to ascertain the facts, and, applying the law to the facts, to render a final judgment.”).

Prison discipline is an exercise of executive power and nothing in this opinion should be interpreted to suggest otherwise. However, trying, convicting, and sentencing inmates for crimes committed while in prison is not an exercise of executive power. Accordingly, we hold that R.C. 2967.11 violates the doctrine of separation of powers and is therefore unconstitutional.

Based on the foregoing, the judgment of the court of appeals in case No. 98-2694 is reversed, the judgment of the court of appeals in case No. 99-542 is affirmed, and the petitioner is discharged in case No. 99-273.

Judgment accordingly.

Moyer, C.J., Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur. Douglas and Cook, JJ., dissent.