State ex rel. Maurer v. Sheward

1994 Ohio 496, 71 Ohio St. 3d 513
Ohio Supreme Court·Decided December 30, 1994·No. 1992-1350·Published·Cited by 157 cases

Opinions

[517]*517 Per Curiam.

Case No. 93-1165 requires this court to decide three issues: (1) Does Section 11, Article III of the Ohio Constitution authorize the General Assembly to prescribe procedural prerequisites to the exercise of the Governor’s clemency power? (2) If so, does the General Assembly have the authority to prescribe procedural prerequisites for commutations as well as pardons? and (3) Has the General Assembly in fact imposed procedural prerequisites upon the Governor’s clemency power?

We will address case No. 92-1350, which raises issues also implicated by case No. 93-1165, in Part IV of this opinion.

I

Section 11, Article III of the Ohio Constitution provides the authority for the Governor’s clemency power:

“He [the Governor] shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law. Upon conviction for treason, he may suspend the execution of the sentence, and report the case to the general assembly, at its next meeting, when the general assembly shall either pardon, commute the sentence, direct its execution, or grant a further reprieve. He shall communicate to the general assembly, at every regular session, each case of reprieve, commutation, or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with his reasons therefor.”

Section 11, Article III was adopted as part of extensive revisions to the Constitution made in 1851. Prior to 1851, the Governor’s clemency power was set forth in Section 5, Article II of the Ohio Constitution of 1802, which provided in its entirety: “He [the Governor] shall have the power to grant reprieves and pardons, after conviction, except in cases of impeachment.” This section was modeled after Section 2, Article II of the United States Constitution, which gives the President the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

Both the United States Constitution and the Ohio Constitution of 1802 conferred broad powers of executive clemency. The only limitations on the clemency power were that it could be exercised only after conviction (Ohio Constitution) and that clemency could not be granted in cases of impeachment (both Ohio and United States Constitutions). Neither Constitution authorized the enactment of laws to curtail the executive’s clemency power. However, with the adoption of [518]*518Section 11, Article III, Ohio significantly altered its provision on executive clemency.

Although the Ohio Constitution places the clemency power in the hands of the Governor, that power clearly is not absolute. The Governor’s clemency power is subject to whatever restrictions are contained in Section 11, Article III. See State v. Morris (1978), 55 Ohio St.2d 101, 111, 9 O.O.3d 92, 98, 378 N.E.2d 708, 714. These restrictions provide that clemency may be granted only after conviction, may be granted only partially in cases of treason, and not at all in cases of impeachment.

Though the Governor’s power to grant clemency is limited, the only limits on the clemency power are those specifically authorized by Section 11, Article III. Knapp v. Thomas (1883), 39 Ohio St. 377, 392. The General Assembly may not interfere with the discretion of the Governor in exercising the clemency power. Morris, 55 Ohio St.2d at 111, 9 O.O.3d at 98, 378 N.E.2d at 714. Likewise, the Governor’s exercise of discretion in using the clemency power is not subject to judicial review. See State ex rel. Whiteman v. Chase (1856), 5 Ohio St. 528, 535; Knapp, 39 Ohio St. at 391.3

The specific limitation at issue in this case comes from the “subject to” clause of Section 11, Article III:

“He [the Governor] shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law.” (Emphasis added.)

It is apparent from the structure of the first sentence of Section 11 that the “subject to” clause modifies the word “power.” The first clause of the first sentence provides the Governor the power to grant executive clemency. The presence of the word “however” in the second clause indicates a limit on that power. Thus, the Governor’s power to grant clemency is limited by the “subject to” clause. However, the authority granted to the General Assembly under the [519]*519“subject to” clause is itself limited to regulating the application process. Furthermore, as we conclude below, the “subject to” clause provides the General Assembly only with the authority to regulate “as to the manner of applying for pardons.” (Emphasis added.) Consistent with Knapp and Morris, the authority to issue regulations is further limited in that those regulations may not interfere with the Governor’s discretion to grant or deny pardons.

We believe that the authority to prescribe regulations “as to the manner of applying for pardons” provides the General Assembly with the authority to prescribe a regulatory scheme governing the manner and procedure of applying for pardons. Unlike the court of appeals, we do not believe that the General Assembly has the authority to regulate only the applicants for pardons. We interpret the language of the “subject to” clause as providing the General Assembly with the authority to establish a regulatory scheme that includes prerequisites to the exercise of the Governor’s power to grant pardons.4 Our interpretation is consistent with the purpose of the “subject to” clause, which was to provide the General Assembly with the authority to establish procedural safeguards against the granting of pardons. The drafters of Section 11 were concerned that without such safeguards, the Governor might grant pardons without thorough consideration or might be too easily influenced by political factors to grant or deny clemency for reasons other than the merits of an inmate’s claim. See 1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio 1850-1851 (1851) 306-307. Consistent with the language and purpose of Section 11, the authority to regulate the application process must also include the authority to establish prerequisites to the Governor’s exercise of the power to grant pardons. To exempt the Governor from the “subject to” clause would allow the Governor to circumvent the procedural safeguards for which the clause was adopted, rendering the clause meaningless.

For the foregoing reasons, we hold that the General Assembly is authorized by Section 11, Article III of the Ohio Constitution to prescribe procedural prerequisites to the application process for executive pardons. In order to be valid, any grant of a pardon must be based on an application that complies with the procedural prerequisites.

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State ex rel. Maurer v. Sheward, 1994 Ohio 496, 71 Ohio St. 3d 513 (Ohio 1994).

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