A legal expert is asking Ohio lawmakers to abolish a law that encourages judges to consider “amorphous” factors other than the statutes’ language when deciding what the ambiguous laws may mean.
Daniel J. Dew, a legal fellow at The Buckeye Institute, testified Tuesday before the Ohio Senate Judiciary Committee on Senate Bill 307, which would remove a law that encourages Ohio courts to look at problematic sources to devise the legislative intent of ambiguous statutes.
A PDF copy of Dew’s testimony is available:
A summary of Senate Bill 307 is available here.
Dew pointed out what he said were two problems – the practical and the constitutional – with Ohio’s current law, the institute said in a press release. The current law allows judges to consult “amorphous things, such as legislative history, the object sought to be obtained, and the circumstances under which the statute was enacted” when trying to determine legislative intent.
In other words, the law allows judges to guess what legislators meant when they passed the statute.
Concerning the former problem, Dew quoted the Ohio Supreme Court decision in State v. Dickinson. That decision says, “No legislative history of statutes is maintained in Ohio…” While the Legislative Service Commission has “tried to recast its own reports and analyses as a so-called legislative history,” its “reports are not written by members of the General Assembly. They are not voted on by House or Senate committees, nor, of course, by the General Assembly itself.”
The Legislative Service Commission calls itself a nonpartisan analysis agency, according to its website.
Concerning the latter problem, Dew said, the current law circumvents the legislative process.
“When a court reads any concept, instruction, or principle outside of the statute’s text into the statute, the court gives the force of law to such extrinsic material that has not survived the constitutionally prescribed legislative process,” Dew said. “By instructing Ohio courts to look for meaning outside the text of a statute, Revised Code 1.49 encourages courts to circumvent the constitutional legislative process, which will erode respect for our process of bicameralism and presentment.”
Dew warned the Senate Judiciary Committee that by allowing courts to look outside statutes, Code 1.49 “will only encourage staffers, lobbyists, and public interest groups to circumvent the constitutional process.”
He urged lawmakers to create clear, precise legislation to avoid this problem.
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