33

The     State ex rel. Maurer et al., Appellants, v. Sheward,          Judge,


Appellee.


Wilkinson, Dir., et al., Appellants, v. Maurer et al., Appellees.


[Cite       as State ex rel. Maurer v. Sheward (1994), ___ Ohio        St.3d


___.]


Constitutional law — Commutations of death sentences by          Governor


        not    subject to application process outlined in R.C. 2967.07


        — Section 11, Article III, Ohio Constitution, construed.


         (Nos. 92-1350 and 93-1165 — Submitted September 20, 1994          —


Decided December 30, 1994.)


         Appeals from the Court of Appeals for Franklin County, Nos.


91AP-1442, 92AP-674, 92AP-675, 92AP-677 and 92AP-678.


                              Case No. 93-1165


        On January 10, 1991, two business days before the expiration


of    his     term in office, former Ohio Governor Richard F.     Celeste


commuted       the   sentences of eight inmates and   granted   one     full


pardon.        Two additional inmates also were granted clemency,        but


their appeals below were either withdrawn or properly found to be


moot.1
         Donald Lee Maurer, Leonard Jenkins, Debra Brown, Willie Lee


Jester,       Elizabeth Green, Lee Seiber and Rosalie Grant                          had       been


convicted of aggravated murder and sentenced to death.                               With        the


exception of Rosalie Grant, former Governor Celeste commuted                                     the


death     sentences             to     life imprisonment without          eligibility            for


parole.       The Governor commuted Rosalie Grant’s death sentence                                to


life     in     prison          with     no restriction as to parole              eligibility.


Ralph     DeLeo           had    been convicted of murder          and      was     serving        a


sentence        of        fifteen       years to life.      Former       Governor         Celeste


commuted        his        sentence       to time served.      John       Salim      had       been


convicted of felonious assault.                    He was serving a sentence of six


to     twenty-one years when former Governor Celeste granted                               him     a


full pardon.


          When            the        former   Governor   granted      the         pardon         and


commutations,              the Ohio Adult Parole Authority               (“APA”)         had     not


been asked to conduct investigations or formulate recommendations


for     seven        of     the applicants who had been sentenced                   to     death.


Instead, their applications for clemency were filed directly with


the former Governor.                   With respect to Ralph DeLeo and John Salim,
their        applications were submitted to the APA between December                                   6


and December 17, 1990.                 By January 9, 1991, the APA had taken                          no


final         action     on     the     two     applications.         On     that         day,         a


representative from former Governor Celeste’s office                                called           the


APA     to     request that it expedite review of the two applications.


The     APA     responded that it could not complete the review process


in two business days.


         On     January        29,     1991,     George     Wilson,        Director        of        the


Department           of Rehabilitation and Correction, and John Shoemaker,


Chief of the APA,2 filed a complaint for declaratory judgment                                         in


the Franklin County Court of Common Pleas seeking a determination


that     former Governor Celeste’s actions were in contravention                                      of


Section        11,     Article        III     of the Ohio     Constitution,           and        R.C.


Chapter        2967.      The        plaintiffs sought a        declaration           that           the


pardon        and     commutations          granted to the      defendants           by     former


Governor Celeste were void.                    Current Governor George V. Voinovich


successfully           petitioned the court for leave to                    intervene           as     a


plaintiff.


         On     March     6,     1991, the defendants moved                 to   dismiss             the
complaint for lack of jurisdiction, alleging that the matter                                      was


nonjusticiable,                because     any     judicial      declaration     as        to     the


validity           of executive clemency would unconstitutionally infringe


upon        the     Governor’s clemency power.                 The trial court        overruled


the        motion on September 26, 1991.                 Following a bench trial,                 the


trial        judge       issued a decision and entry granting a                  declaratory


judgment            to    plaintiffs.            The   court     explained      that            “full


compliance with the requirements of R.C. 2967.07 and R.C. 2967.12


is     a     condition precedent to the valid exercise of the                          clemency


power by the Governor * * *” and that the pardon and commutations


granted by former Governor Celeste were invalid.


            The     eleven defendants appealed in six separate notices                             of


appeal to the Tenth District Court of Appeals; their appeals were


consolidated             for     decision.        The court of appeals         reversed           the


decision           of the trial court.             After considering the language                  of


Section           11,    Article III, the court of appeals               found        that        the


clause        that       subjects        the Governor’s clemency         power        to        “such


regulations,             as     to the manner of applying for pardons”                     applies


only        to the Governor’s power to grant pardons.                    The court stated
that     the       constitutional provision does not provide the                   General


Assembly with authority to regulate the Governor’s power to grant


commutations.               The     court   of    appeals    also     determined         that


regulations             enacted by the General Assembly apply to individuals


applying          for     pardons     but   do not affect      the     ability     of     the


Governor          to grant a pardon on his own initiative.                Specifically,


the court of appeals held that nothing in Section 11, Article III


of     the       Ohio Constitution or R.C. Chapter 2967 could                   limit     the


Governor’s power to grant clemency on his own initiative, even if


he     chose to do so without first receiving a recommendation                           from


the APA.


         This cause is now before this court upon the allowance of a


motion to certify the record.


                                      Case No. 92-1350


         The       second     cause submitted for review             emerged     from     the


underlying          declaratory        judgment     action    discussed        above.      On


December          10, 1991, after the trial court denied the                   defendants’


motion       to dismiss the action, but prior to trial, the defendants


sought       a     writ     of prohibition in the Franklin County                Court     of
Appeals.        Defendants urged the court of appeals to bar the                trial


judge      from        exercising   judicial   power    over    the    declaratory


judgment action, because the action did not present a justiciable


question.         On     January 28, 1992, a referee      concluded      that        the


defendants’ arguments lacked merit and recommended that the court


of   appeals dismiss the prohibition action on the basis                  of        this


court’s decision in State ex rel. Ney v. Governor (1991), 58 Ohio


St.3d     602,     567     N.E.2d 986.   The court of appeals         adopted        the


referee’s recommendation and dismissed the petition.


         This     cause is now before this court upon an appeal                as     of


right     and     has     been   consolidated with     case    No.    93-1165        for


purposes of final determination.


                                 ___________________


        Ken Murray, for appellant Debra Brown in case No. 92-1350.


        Barry W. Wilford and Dennis Pusateri, for Ralph DeLeo.


        S. Adele Shank, for Rosalie Grant.


        D. Shannon Smith and Timothy A. Smith, for Elizabeth Green.


         Elizabeth A. McNellie, Joy Maciejewski and Sean M.                McAvoy,


for appellant Leonard Jenkins in case No. 92-1350.
         Shaw,     Pittman, Potts & Trowbridge, Thomas C.   Hill,     Alvin


Dunn     and     Joseph Figini; Matan & Smith and Steven L. Smith,       for


Willie L. Jester.


         Sowash,     Carson & Shostak and Herman A. Carson, for     Donald


Maurer.


        Richard B. Igo, for Freddie Moore and John Salim.


        Gregory W. Meyers, for Lee Seiber.


         Michael     Miller, Franklin County Prosecuting Attorney,       and


Bonnie L. Maxon, Assistant Prosecuting Attorney, for appellee             in


case No. 92-1350.


         Lee     Fisher, Attorney General, John J. Gideon and     Jack    W.


Decker,        Assistant Attorneys General, for appellants in case       No.


93-1165 and urging affirmance for amici curiae, George Voinovich,


Reginald Wilkinson and Jill Goldhart in case No. 92-1350.


         K.     Ronald Bailey, for appellee Debra Brown in case No. 93-


1165.


         Melanie S. Corcoran, James W. Brown III and Christopher          P.


Thorman, for appellee Leonard Jenkins in case No. 93-1165.


         Steven     H.   Steinglass, urging dismissal or affirmance      for
amicus     curiae, Law Professors’ Brief Amicus Curiae Committee                         in


case No. 93-1165.


         Kevin Francis O’Neill, Peter Joy, Daniel T. Kobil and                         Paul


Moke;     Moots,     Cope     &    Stanton     and     Benson   A.     Wolman,       urging


affirmance for amicus curiae, American Civil Liberties                         Union     of


Ohio Foundation in case No. 93-1165.


Squire,        Sanders & Dempsey and David J. Young, urging                   affirmance


for     amicus curiae, Catholic Conference of Ohio in case                       No.    93-


1165.


         Law     Enforcement Legal Association, Inc., Paul L.                    Cox    and


Walter     T. Florence, urging reversal for amicus curiae, Fraternal


Order of Police of Ohio, Inc., in case No. 93-1165.


                                  ___________________


         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


Section 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 “subject to”        clause     is        itself
limited        to regulating the application process.                  Furthermore,       as


we    conclude            below, the “subject to” clause          only    provides       the


General Assembly 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.              The General Assembly is not authorized


to    prescribe         substantive regulations concerning the              Governor’s


discretion        in     the     use of the clemency power,     or     in     any    way


intrude     on     the     discretion of the Governor.        For     example,       the


General     Assembly           could not, acting under the limited           authority


provided     by        Section 11, Article III, enact a statute              requiring


the    Governor         to accept the recommendation of        the     APA     in    the


exercise     of his clemency power.              Likewise, the General        Assembly


could not enact a statute forbidding the Governor from exercising


the clemency power in any specific class of cases.


                                           II


         Having        determined that Section 11, Article III              authorizes


the    General Assembly to prescribe procedural regulations                     as    to


the    application         process for pardons, we next        consider        whether


that authority extends to any other types of clemency.


         The language of Section 11 expressly provides the extent of


the    General         Assembly’s     authority to regulate     the     application


process for executive clemency:                 “[The Governor] shall have power
*    *     *     to     grant reprieves, commutations, and pardons                         *     *     *;


subject,          however,        to such regulations,        as    to        the        manner        of


applying          for     pardons, as may be prescribed by law.”                          (Emphasis


added.)           The language of Section 11 clearly provides the General


Assembly          with the authority to regulate the application                               process


for pardons.             However, the “subject to” clause does not implicate


in       any way the Governor’s powers with respect to commutations or


reprieves.5              The     issue then becomes whether commutations,                            even


though they are not mentioned within the “subject to” clause, may


also be regulated.


               Plaintiffs        argue   that   the    authority         to     regulate              the


application process for “pardons” also includes the authority                                          to


similarly             regulate     commutations.      They    reach       that           conclusion


based          upon     their     perception that the        word     “pardons”                may     be


interpreted             broadly to include all types of executive                         clemency.


In       other        words,     the plaintiffs argue that commutations                         are     a


subset          of pardons, and by using the word “pardons” the                            drafters


intended          that     the General Assembly have the power                      to     regulate


commutations as well as pardons.
        We do not believe that commutations are a subset of pardons.


The     first     step        in determining the meaning of a           constitutional


provision        is     to     look at the language of the provision           itself.


Where     the meaning of a provision is clear on its face,                    we     will


not     look     beyond the provision in an attempt to divine what                       the


drafters        intended        it to mean.     Slingluff v. Weaver        (1902),        66


Ohio St. 621, 64 N.E. 574.


         The meaning of Section 11 is obvious after a careful review


of that provision.              The first sentence provides the Governor with


the power to grant three different types of clemency — reprieves,


commutations           and     pardons.     The end of   the    first     sentence        is


equally        clear     in     providing     the   General    Assembly     with         the


authority to regulate the application process for only                       one     type


of     clemency — pardons.           The language of Section 11 could not                 be


clearer in limiting the General                 Assembly’s authority to regulate


only     pardons.            Moreover, any argument that commutations              are     a


subset of pardons is, as shown below, simply unsupportable.


         The     canons        of statutory interpretation, which           guide        our


interpretation of constitutional and statutory text, support                             the
conclusion           that     the word “pardons” in the “subject        to”     clause


does     not include commutations.           This court has consistently held


that     words        used more than once in the same provision           have        the


same     meaning        throughout the provision, unless        there     is        clear


evidence        to     the contrary.     State ex rel. Bohan v. Indus.              Comm.


(1946),        146     Ohio St. 618, 33 O.O. 92, 67 N.E.2d 536,           paragraph


one     of     the syllabus, overruled on other grounds, State ex                    rel.


Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d                          347,


390     N.E.2d        1190.     The three types of clemency are     each        listed


together        four different times in Section 11.           In fact, the           only


time     one        type of clemency is mentioned alone is when           “pardons”


appears        within       the “subject to” clause.   To define        pardons        to


include        commutations        when the two types of     clemency     are        each


listed together so many times within the same small section would


be     nonsensical.           Additionally, interpreting “pardons” to include


commutations           has the problem of rendering the        presence        of     the


word     “commutations” useless.           Our prior cases     require        that     we


reject        that result, because if possible we must give meaning                    to


every        word     in a provision.     Steele, Hopkins & Meredith           Co.     v.
Miller (1915), 92 Ohio St. 115, 110 N.E. 648.


         The        argument that commutations are a subset of pardons            is


also     contrary to our previous decisions where we have held                  that


commutations              and   pardons are two entirely   different    types     of


clemency.            In     In re Victor (1877), 31 Ohio St. 206,      207,     this


court     defined           a commutation as “a change of punishment      from     a


higher        to     a lower degree, in the scale of crimes and         penalties


fixed     by the law * * *.”            In State ex rel. Atty. Gen. v.        Peters


(1885),        43     Ohio St. 629, 650-651, 4 N.E. 81, 87-88, this            court


defined pardons:


         “A pardon discharges the individual designated from all                  or


some     specified penal consequences of his crime.             It may be       full


or partial, absolute or conditional.


         “A        full and absolute pardon releases the offender from the


entire        punishment prescribed for his offense, and from            all     the


disabilities consequent on his conviction.


         “[A] commutation is ‘the change of a punishment to which                  a


person has been condemned into a less severe one.’


         “It is not a conditional pardon, but the substitution of                  a
lower for a higher grade of punishment * * *.”                                  (Citation omitted


and emphasis added.)


         The     Peters case conclusively established that pardons                                        are


different            from,         and        do     not    include,      commutations.                   The


interpretation              of     Section 11 ends here, with                   the        unmistakable


conclusion           that        the “subject to” clause does                   not        provide        the


authority to regulate commutations.


         Instead of approaching Section 11 by considering its                                           plain


language, the dissent attempts to justify its interpretation that


the      word         “pardons”              in     the    “subject     to”     clause            includes


commutations by wading into the morass of speeches                                        made     by     the


drafters of Section 11.                       The dissent bases its interpretation                         on


the   perception that because several drafters did not distinguish


between commutations and pardons in their speeches regarding                                              the


reporting        clause           of        Section 11, they intended                that        the     word


pardon     in the “subject to” clause include commutations.                                        Such     a


conclusion           is     simply incomprehensible.                   We do        not     agree        that


imprecise        speeches              by     individual drafters             give        courts        carte


blanche         to        ignore        the        plain    language     of     a     constitutional
provision.            Those     drafters were precise         when     they        wrote   the


reporting provision.              That provision, which is the last                  sentence


of    Section 11, precisely distinguishes among the three different


types      of     clemency:            “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     the reasons   therefor.”            (Emphasis


added.)     Moreover, as we stated in Slingluff, we will not look to


the     history of a provision where, as here, the language                           of   the


provision is clear.


          Given         our      tradition        of   interpreting        statutory       and


constitutional           language,           the only plausible      interpretation         of


Section     11        is the one we adopt today — the “subject to”                     clause


provides        authority        to     the General      Assembly     to     regulate      the


application process for pardons and not commutations.


                                                 III


         Because        we     have established that Section 11, Article                   III


authorizes        the        General     Assembly to      regulate     the        application
process        for     pardons,     we   must determine    whether      the        General


Assembly        has,     in fact, prescribed any regulations.                Plaintiffs


claim        that     the General Assembly, through R.C. Chapter                  2967    in


general         and      R.C.     2967.07   in   particular,     has        established


procedural           requirements that must be fulfilled before               a     pardon


may     be     granted.       Defendants argue that R.C. 2967          is     merely       a


directory statute setting forth procedures which the Governor


may choose to ignore.


        R.C. 2967.07 provides:


         “All        applications for pardon, commutation of sentence,                    or


reprieve        shall be made in writing to the adult parole authority.


Upon     the        filing    of such application, or when directed                by    the


governor in any case, a thorough investigation into the propriety


of     granting a pardon, commutation, or reprieve shall be made                          by


the     authority, which shall report in writing to the                     governor       a


brief        statement       of   the facts in the case,       together       with       the


recommendation of the authority for or against the granting of                             a


pardon,        commutation, or reprieve, the grounds therefor                     and    the


records or minutes relating to the case.”
         As we determined above, Section 11, Article III of the Ohio


Constitution           authorizes           the General Assembly            to     regulate              the


application           process       only         with     respect    to    pardons,           and        not


commutations           or     reprieves.           Because the grant of            the        clemency


power     with        respect to commutations and reprieves is unfettered,


any     regulation by the General Assembly that acts                              to        limit        the


Governor’s        power        to     grant        commutations       or    reprieves              is      a


violation of the Constitution.                          To the extent that the regulatory


scheme under R.C. Chapter 2967 places limits or preconditions                                             on


the     Governor’s power to grant commutations or reprieves,                                       it     is


unconstitutional              and void.           We are particularly            concerned              with


R.C.     2967.07.            As we note below, the General Assembly                           in        R.C.


2967.07 has provided a regulatory prerequisite to the granting of


commutations,           as     well        as     pardons and       reprieves:          a     clemency


application           must     be made to and acted on by                  the     Adult           Parole


Authority        before        the Governor may grant clemency.                         We     do        not


question        the     wisdom        of        this     legislation,      but     it         has         no


constitutional underpinnings beyond pardons.


          The         question         becomes           whether     we     may         sever            the
unconstitutional                references to commutations and          reprieves        from


the otherwise constitutional portions of R.C. 2967.07.                           R.C. 1.50


provides       that statutory provisions are presumptively                      severable:


“If    any     provision           of    a section of the     Revised     Code     or     the


application          thereof        to    any   person   or   circumstance        is     held


invalid,       the     invalidity          does not affect     other     provisions        or


applications          of        the section or related sections          which     can     be


given effect without the invalid provision or application, and to


this    end        the provisions are severable.”             In order     to     sever     a


portion       of     a statute, we must first find that such a                   severance


will not fundamentally disrupt the statutory scheme of which                              the


unconstitutional provision is a part.                    We set forth the test            for


determining whether an unconstitutional provision may in fact                              be


severed       in Geiger v. Geiger (1927), 117 Ohio St. 451,                      466,     160


N.E. 28, 33:


        “‘(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?’”


Id.,     quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407,


paragraph nineteen of the syllabus.


         The     references to commutations and reprieves meet the test


for     severability        provided in Geiger.       R.C. 2967.07       provides        a


regulatory        scheme     that imposes the same         regulations        upon     the


three types of clemency.              In other words, it is as if there               were


three separate but identical statutes each regulating one type of


clemency.        Therefore, the regulation of each type of clemency                     is


essentially           independent     of   the   others.     Because      of         their


independence,           the regulation of commutations and            reprieves        are


not     so     connected     to     the regulation of      pardons     that     without


reference        to     commutations and reprieves the         regulatory        scheme


will     not     give effect to the intention of the General                  Assembly.


The requirements of the regulatory scheme concerning pardons will


not     change.        We need only excise the constitutionally               offensive
references to commutations and reprieves in R.C. 2967.07 and need


not     add        any        other        language in order to          give    effect     to     its


regulatory           scheme.               Thus, we hold that, pursuant            to     the     Ohio


Constitution,                 R.C. 2967.07 may regulate the application                     process


for pardons only.


         Because              only     a        portion of the statute is constitutional,


only     the Governor’s grant or denial of a pardon is “subject                                    to”


the     application process outlined in R.C. 2967.07.                              His power        to


grant        or     deny commutations is not subject to those regulations.


Therefore, the commutations at issue in this case remain valid.


             The     validity              of     the     one   pardon   granted    without         an


application              in     compliance with the procedure outlined                     in     R.C.


2967.07           remains        at issue.              We must now determine      whether        this


noncompliance precluded the Governor from granting a                                    pardon.     As


we     noted        above,           the        Governor exercises       the    pardoning        power


“subject           to” these regulations, even though the General Assembly


is     not        authorized by Section 11, Article III to intrude in                              any


way upon the Governor’s discretion to grant or deny a pardon.


         The        exercise of the pardoning power involves two                           distinct
elements — the application process and the consideration process.


The     phrase “manner of applying” for pardons includes the                          entire


application              process,     which   encompasses    the   filing        of      the


application              itself,     the investigation, the recommendation,              and


the     full        report compiled by the APA.           We find that the        General


Assembly’s authority to regulate the application process                          extends


to    the      time        just     before the Governor     reaches     a     substantive


decision           concerning a pardon.         Once this point is          reached,     the


General Assembly’s constitutionally granted authority to regulate


procedurally the pardoning power of the Governor is at its end.


         By        its     clear     terms,   R.C. 2967.07 contemplates          that     an


investigation              by the APA that leads to a recommendation              for     or


against        a     pardon        may be initiated in two distinct           ways.      The


first       way      is     for an applicant (or someone on           the     applicant’s


behalf)        to        file a pardon request directly with           the     APA.      The


second        way        is for the Governor to direct that the investigation


occur.         The        real issue in this case is whether the Governor                 is


required to await the APA investigation and recommendation before


he may grant a pardon.
         The     first        sentence       of     R.C. 2967.07      requires        that     all


pplications           for pardons shall be made to the APA.                     The     General


Assembly has chosen the word “all” to indicate that every request


for a pardon must go to the APA for evaluation.                          In addition, the


General        Assembly        has    chosen to use the word            “shall”        in     R.C.


2967.07        three     times in connection with the APA’s                 role        in     the


pardon      application process.                  This indicates the mandatory nature


of the APA investigation and of the entire APA involvement in the


application process.


          We      hold        that    R.C.        2967.07   mandates     that         the      APA


investigation report and recommendation must be presented to                                   the


Governor        before        he may grant a pardon.           This     mandate        includes


those     situations           in    which        the   Governor    initiates         the      APA


investigation.


         The     requirement of APA involvement by the General Assembly


is   permissible,             because    it is within         the     General     Assembly’s


authority to “legislate in aid of the [pardoning] power.”                                   Knapp,


39   Ohio       St.     at 392-393.          The statute is meant to            ensure        that


information           about     each person for whom a pardon              is     considered
will     be        available to the Governor, so that an informed decision


may be made.           This is precisely the type of regulation “as to the


manner        of     applying     for pardons” contemplated     by    Section    11,


Article III.           The Governor’s power to grant pardons is subject to


this procedural mechanism, which requires the APA to investigate,


recommend and report before the Governor may grant a pardon.


         Because        the     Governor has ultimate substantive       discretion


whether        to grant or deny a pardon, there is no requirement               that


the      Governor        place     any   weight   whatsoever   on     either     the


investigative report or the recommendation of the APA.                    However,


the     power to disregard is not equivalent to the power to proceed


without        the procedural requirements first being fulfilled.                The


abuses        sought     to     be remedied by addition of the       “subject    to”


clause in Section 11, Article III are those that occur during the


application process.              Thus, the process is subject to regulation,


and procedural requirements may be placed on the Governor’s power


to     pardon.        To find otherwise would be to read the “subject            to”


clause out of Section 11, Article III, when it is clear that that


clause affects the power of the Governor to grant pardons.
         Defendants argue that if R.C. 2967.07 regulates                        in        a   way


which affects the Governor’s power to pardon, then the statute is


unconstitutional.               However,    the     regulations       placed         on       the


pardoning power are those authorized by the Constitution                              itself.


See     Knapp,     39 Ohio St. at 392.            Since R.C 2967.07           was     enacted


pursuant to the authority of Section 11, Article III, the statute


is constitutional to the extent that it regulates the application


process for pardons.


         We     recognize        that the pardoning power         conferred           on      the


Governor by the Ohio Constitution is essential to ensure                              justice


in particular cases.              Indeed, as Alexander Hamilton stated in The


Federalist        No.    74 (Cooke Ed. 1961) 500-501, in support                      of      the


broad     clemency power conferred on the President                     by     Section         2,


Article II of the United States Constitution:                     “Humanity and good


policy        conspire     to     dictate, that       the    benign     prerogative            of


pardoning         should         be   as   little     as    possible         fettered          or


embarrassed.        The criminal code of every country partakes so much


of    necessary severity, that without an easy access to exceptions


in    favor      of unfortunate guilt, justice would wear a countenance
too sanguinary and cruel.”


         However,           the     power to pardon is subject               to     abuse.         The


framers        therefore authorized the Ohio General Assembly to                                 enact


regulations           to     limit those abuses, thereby allowing                     procedural


requirements           which limit the Governor’s exercise of                        the        power.


In   R.C.       Chapter           2967,        the General Assembly        has      enacted        the


authorized           regulations           as     safeguards     against      abuse.             Those


safeguards           do not stand in the way of the Governor’s substantive


exercise        of the pardoning power.                 It would take an amendment                  to


Ohio’s         Constitution               to     authorize     substantive          limitations.


Nevertheless,              the     safeguards do impose procedural                  requirements


which were bypassed in this case.                       The pardon purportedly granted


was invalid from the outset.


         Amicus        curiae        American        Civil     Liberties      Union        of     Ohio


Foundation argues that if this court reverses the decision of the


court     of        appeals, the cause should be remanded to the court                              of


appeals        to     resolve        issues that court           did   not        reach     in     its


previous        opinion.           However, we have determined, as a                  matter        of


law, that former Governor Celeste acted outside the scope of                                       his
constitutionally           conferred clemency authority           in        granting       the


pardon.       The other assignments of error raised in the                         court    of


appeals cannot alter that finding.              The judgment of the court                   of


appeals      in    case     No. 93-1165 is affirmed with           respect           to    the


commutations         and    reversed as to the     pardon.         The        declaratory


judgment      of     the    trial     court that the   pardon          is     invalid       is


reinstated.


                                           IV


                                    Case No. 92-1350


        In    case     No. 92-1350, the defendants in case                   No.     93-1165


appeal from the court of appeals’ denial of their complaint for a


writ    of    prohibition.           Defendants contend   that          the        court    of


appeals erred in refusing to stop the trial court from exercising


jurisdiction         in the declaratory judgment action,                which        is    the


subject      of    the appeal in case No. 93-1165.           We        find        that    our


resolution of the issues in case No. 93-1165 is determinative                               of


the    issues raised in this appeal, and that any remaining                           issues


therefore are moot.           Accordingly, we affirm the judgment                    of    the


court of appeals in case No. 92-1350.
                                                          Judgment affirmed


                                                    in case No. 92-1350.


                                               Judgment affirmed in part


                                                    and reversed in part


                                                    in case No. 93-1165.


        A.W. Sweeney, Wright and Evans, JJ., concur.


        Moyer, C.J., concurs separately.


         Douglas, Resnick and F.E. Sweeney, JJ., concur in part         and


dissent in part.


         John R. Evans, J., of the Third Appellate District, sitting


for Resnick, J.


FOOTNOTES:


1.      In his application for clemency, Saram Bellinger stated that


he      was     convicted   of   aggravated     robbery      with   firearm


specifications and was sentenced to an indefinite term of five to


twenty-five years’ imprisonment, to be served consecutively            with


three     years’ actual incarceration.     Both former Governor Celeste


and     Governor George V. Voinovich commuted that sentence to         time


served.       Bellinger withdrew his appeal.
        According to his application for clemency, Freddie Moore was


convicted        of operating a gambling house and received a suspended


sentence.            Former        Governor Celeste granted      Moore     a     full     and


unconditional              pardon on January 11, 1991, after            which     Governor


Voinovich pardoned him on August 24, 1992.                     The court of        appeals


noted      that his appeal had been rendered moot by the pardon                          from


Governor Voinovich.


2.      Reginald Wilkinson was substituted as a party to this action


pursuant to Civ.R. 25(D)(1) when he replaced George W. Wilson                              as


the Director of Rehabilitation and Correction effective March 25,


1991.


         Jill        Goldhart        was   substituted as a     party     for     John     W.


Shoemaker when she became Acting Chief of the APA.


3.       Even        though courts may not review the substantive decision


of   the     Governor on whether to exercise clemency in a particular


case,      courts          may     consider whether constitutionally            authorized


limitations           on     the     clemency power have      been   respected.           For


example,        if     a Governor attempted to grant a pardon                  before     the


recipient        had        been     convicted, the   purported      grant       would     be
outside the scope of the clemency power conferred by Section                                       11,


Article        III     and     constitutionally          invalid        from     the        outset.


Similarly, a purported pardon is not really a pardon                                 at     all     if


constitutionally              authorized     procedural          limitations               on      the


pardoning       power        are ignored.        Knapp held that          a     pardon,           once


granted     and       delivered, is irrevocable.             Id., 39 Ohio                 St.     377,


syllabus.           However,     Knapp     did     not    consider        the         issue         of


constitutional limitations on the Governor’s power.                              An attempted


pardon     which       is     granted without adherence to                constitutionally


authorized          requirements     is     invalid,       and     is     not        immune         to


challenge.


4.       Interpreting          the “subject to” clause             as     authorizing              the


General     Assembly          to set up a regulatory scheme                   which        includes


prerequisites          to the exercise of the Governor’s pardoning                              power


is    consistent with our earlier analysis where we found that                                     the


clemency       power is subject to whatever limits are                         set        forth     in


Section 11, Article III.             In the case of the “subject to” clause,


the    limit        takes     the form of an authorization                to     the        General


Assembly       to     issue     regulations that will themselves                      limit        the
Governor’s pardoning power.


5.       Though the validity of a reprieve is not at issue                    in    this


case,     we     believe       that any interpretation of the         “subject       to”


clause is necessarily incomplete without considering each of                         the


three     types       of executive clemency.       In terms of       reprieves,       we


believe        that they are fundamentally different from              pardons.        A


reprieve        is    temporary; execution of a sentence is delayed                 when


the     Governor grants a reprieve.           A reprieve is not permanent             in


the way that a pardon is.             Reprieves, by their very nature, often


require        prompt,      totally   unfettered    action    by     the     Governor.


Consequently,          we     find that reprieves are not         governed     by    the


“subject to” clause and, consistent with our analysis below,                         the


General        Assembly       may not regulate the application         process       for


reprieves.


         Moyer,       C.J.,     concurring   separately.      I     concur     in    the


judgment        and    opinion     of the majority that      apply     Section       11,


Article        III, Ohio Constitution and R.C. Chapter 2967 as                 clearly


intended        by    the drafters of the Ohio Constitution            and     by    the


General Assembly.             I write separately to discuss an aspect of the
majority           decision       that demonstrates one of the                   very     difficult


responsibilities of being a judge.


             The        majority’s       careful   and        restrained          interpretation


produces the only conclusion that is faithful to the words of the


Constitution             and to R.C. Chapter 2967.                 We are not          required     or


even     requested to review the wisdom or the judgment of the                                    acts


of     Governor Celeste when he pardoned and commuted the                                 sentences


of     the     defendants two business days before he left office.                                  If


that     were the issue, my vote would be to invalidate all                                 of     the


Governor’s             actions.     That, however, is              not     the    issue     we     are


required           to decide.       Nor is there any dispute that even                      if     the


Governor           were required by the Constitution and the                           statutes     to


receive        a       report     from the Ohio Adult Parole                 Authority       before


granting           a    pardon     or    commutation,         he     could       disregard         the


recommendation contained in the report and grant                                 the     pardon     or


commutation.              Indeed,       the   manner     in        which     Governor       Celeste


granted        the       commutations and pardon              in     the     cases       before     us


suggests that even if he had followed the statutory procedure, it


is     unlikely he would have followed a recommendation of the Adult
Parole        Authority           that any of the defendants not        be     granted     a


commutation              or     pardon.   It appears that that is       precisely        the


reason        the        dissent advocates an amendment to        the        Constitution


that     would           limit     the power of the Governor to      grant       pardons,


commutations and reprieves beyond the limitations in Section                             11,


Article        III.           As Chief Justice Marshall observed, “[c]ourts              are


the     mere instruments of the law, and can will nothing.”                        Osborn


v.     Bank of United States (1824), 22 U.S. (9 Wheat.) 738, 866,                          6


L.Ed. 204, 234.


         The        majority        opinion   reflects the   fundamental         role     of


judicial           responsibility and restraint.         Every judge faithful             to


the judicial oath of office must be able to separate the law from


his     or her personal views when deciding cases.                  That fundamental


aspect        of        judging     is a unique challenge to judicial           decision-


making.            In     separating personal opinion from the constitutional


issues before us, I am reminded of the observation that “[i]f the


provisions of the Constitution be not upheld when they                          pinch     as


well     as when they comfort, they may as well be abandoned.”                          Home


Bldg.     &        Loan Assn. v. Blaisdell (1934), 290 U.S. 398,                 483,     54
S.Ct.     231,        256, 78 L.Ed. 413, 452 (Sutherland, J., dissenting).


There     is     no comfort in applying the plain language of the                                Ohio


Constitution to the facts in the case before us.                                The conduct        of


the     death-penalty defendants that produced their convictions and


death     sentences           is the lowest form of human behavior.                        If     the


death     penalty        is appropriate for anyone, it is appropriate                             for


them.      However,           that personal belief has no                 relevance        to     the


legal     issues        before us and must be separated from the                          judicial


decision         we     are     required        to     render.      The        words      of      the


Constitution can be given their plain meaning only as applied                                      by


the     majority        decision.         To     analyze     away        the     words     of     the


Constitution           is to engage in an act of corroborating                          one’s     own


belief that the Governor’s actions were unwise.


         The     distribution        of        power among the           three       branches      of


government        rests        on a delicate balance.              It     is     a     fundamental


element of American government.                       S. Euclid v. Jemison (1986),                 28


Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136.                             We are urged by           the


successor         in      the      office        of     governor         to      exercise         our


constitutional power to invalidate the commutations and a                                      pardon
of   his predecessor in office.               Restraint should characterize the


exercise        of     judicial power in such a case.           If we     abandon      the


words     of the Constitution as adopted by the citizens of Ohio                        in


1851,     we        invade both the authority of the executive branch                  and


the will of the people.


         For the foregoing reasons, I concur, albeit regretfully, in


the per curiam opinion.


         Alice        Robie Resnick, J., concurring in part and dissenting


in part.


                                              I


         By     a     stroke of a pen a Governor is authorized by                  today’s


opinion        to     overturn the death penalty verdicts            of     judges     and


juries        which     have    been    upheld by       countless   state     appellate


judges, Supreme Court justices and federal court judges.                           Today’s


per curiam opinion says it is perfectly acceptable for a Governor


in      the     last     days    of    his   or   her     administration      to     grant


commutations to whomever he or she desires without first awaiting


the APA investigation and report. The basis of such a holding                           is


that the Constitution does not specifically authorize regulations
“as     to        the manner of applying for commutations.”                    As a     result,


only     full        and absolute pardons are “subject to” any regulations


enacted by the General Assembly.


        The per curiam opinion misconstrues Section 11, Article III,


and in the process engages in an inaccurate interpretation of the


scope of the Governor’s pardoning power.6                        While I agree that the


pardon        purportedly granted by former Governor Celeste should                          be


invalidated,              it     is   clear   to   me   that     the    commutations         he


purportedly              granted also should fail for the              very     same     reason


advanced           for the failure of the pardon.               The per curiam          opinion


proclaims           that        Section   11, Article     III     is    unambiguous,        and


essentially ends its analysis of the “subject to” clause at                                that


point.        However, this case involves constitutional interpretation


which        is     not        readily resolvable by resort solely              to     hornbook


rules        of construction, as if in a vacuum, but must be considered


with     an        eye     on the historical context underlying                 Section     11,


Article           III’s evolution into its current form.                 The     per     curiam


opinion, in focusing on a supposed semantical difference                                between


pardons           and commutations, does not grasp the importance of                       this
historical        development,      and thereby   fails    to     comprehend         the


entire scope of this issue.            Section 11, Article III is certainly


capable of more than one interpretation, and the reference to the


“manner     of     applying for pardons” is not so         clear       as     the    per


curiam     opinion      rashly presumes.     Given that the          constitutional


provision is ambiguous, resort to constitutional history                       is    not


only appropriate, it is crucial.            Even a cursory consideration of


constitutional         history reveals that the per        curiam       opinion       is


erroneous.


         The drafters of Section 11, Article III were concerned with


precisely        the   type     of abuse of pardoning     power       which     former


Governor        Celeste accomplished in his last days           in     office.        As


this     case graphically illustrates, the power to commute is                      just


as     easily     abused      as is the power to pardon.        Former        Governor


Celeste intentionally bypassed established procedures and flouted


the constitutional limits on his clemency authority, ignoring the


procedural        safeguards      the Constitution authorizes          the     General


Assembly to put into place regarding the application process                         for


executive clemency.            Members of this court are unwilling to               give
effect to the binding statutory prerequisite for exercise of                                     the


clemency        power,         finding        that     an    APA     investigation               and


recommendation               (along          with      the    accompanying               required


notifications           relating        to     victims’      rights)       are         conditions


precedent for the Governor’s grant of a pardon, but that                                  no     APA


involvement is necessary for a commutation.7


        This     seems an especially curious result when one considers


that    both     the     pardon and the commutation are                    aspects        of     the


Governor’s       clemency power, which has as its source                          Section        11,


Article      III.       Given the per curiam opinion, when                       the     Governor


considers       whether        to     pardon        an applicant     for       clemency,         the


Governor       must     wait        until the APA process           is     complete           before


acting,      but if the Governor contemplates a commutation,                              in     the


alternative,           for      that         same      applicant,        the           procedural


investigation          safeguards of the APA can               be    ignored.           The     near


schizophrenic          result engendered by the per curiam opinion                             makes


the    point     better than any other argument that the                          Constitution


does    in     fact     authorize the General Assembly                   to      regulate        the


application process for executive clemency, and allows that                                     body
to require APA involvement to ensure that the Governor is able to


make     an     informed     clemency decision, whether                      the        Governor       is


considering a pardon or a commutation.


         In     order to underscore the magnitude of this case, a brief


recapitulation of the circumstances of each defendant’s                                     criminal


conviction is in order and appropriate.


                                                    A


        Donald Lee Maurer confessed to the killing of seven-year-old


Dawn     M.     Hendershot.        The evidence presented at                      trial     revealed


that     on     September        29,        1982,       Maurer     drove     to     a     school       in


Massillon,        Ohio,     to     pick        up       his    stepchildren         and         a     few


neighborhood        children           at     the end         of   the     school        day.        Dawn


Hendershot        was the first to arrive.                     Rather than         wait     for       the


other     children        to appear, Maurer decided to depart                            alone       with


Dawn.         Maurer drove Dawn out into the country to a wooded                                    area,


where he stopped the vehicle, removed a twelve-gauge shotgun, and


led     Dawn     into the trees.              He then began to sexually molest                        the


girl.     At some point Maurer became frightened by his actions                                       and


attempted to strangle Dawn with her sweater.                               When she started to
struggle, Maurer shot Dawn in the back, covered her lifeless body


with twigs and leaves, and left the scene to return to his home.


         A     jury     found    Maurer guilty of aggravated murder               with     a


specification,           kidnapping,    and gross        sexual     imposition.          The


trial        court adopted the jury’s recommendation that the defendant


be executed.           His conviction and sentence were affirmed on direct


appeal        to     the court of appeals and this court.                See    State     v.


Maurer (Feb. 13, 1984), Stark App. No. CA-6166, unreported,                             1984


WL   4469,         affirmed (1984), 15 Ohio St.3d 239, 15                OBR    379,     473


N.E.2d        768.      On   January   10,       1991,   former     Governor      Celeste


purportedly           commuted    Donald Maurer’s        death     sentence      to     life


imprisonment without parole eligibility.


                                             B


                                                            Leonard       Jenkins        was


convicted of aggravated murder with specifications, eight                             counts


of   robbery,          one count of attempted murder and             five      counts     of


kidnapping.           The convictions stemmed from a robbery that occurred


in   Cuyahoga          County,    Ohio, on October 21,           1981.      Jenkins      and


another individual entered a branch office of National City                             Bank
and     held     bank     employees and patrons at gunpoint.                During           the


robbery,        Jenkins     observed      a police officer,        Anthony        Johnson,


approach the front door of the bank and peer inside.                        Upon seeing


the officer, Jenkins stated that he and his partner would have to


shoot     their     way out of the bank.         Officer Johnson was              mortally


injured by a gunshot to the head when Jenkins exited the bank and


the     two     exchanged gunfire.         A jury recommended        and     the           trial


court     imposed a sentence of death.            His conviction and              sentence


were     affirmed        on direct appeal to the court of appeals                  and        to


this     court.     See State v. Jenkins (Feb. 24, 1984), Cuyahoga App.


No.     45231, unreported, 1984 WL 14150, affirmed (1984),                        15        Ohio


St.3d     164,     15     OBR 311, 473 N.E.2d 264.         On January        10,           1991,


former        Governor     Celeste      purportedly     commuted     Jenkins               death


sentence to life imprisonment without parole eligibility.


                                             C


         A jury convicted Debra Brown of the murder of fifteen-year-


old     Tonnie     Storey.       The evidence showed that on the morning                      of


July     11,     1984,     Tonnie left her home in         Cincinnati        to        attend


summer        school.      She    was    last seen on     that     day     with        a     man
identified              as     Alton     Coleman        and   a     woman     matching      Brown’s


description.                  On July 19, 1984, a realtor entered                  an     abandoned


building that he was preparing to show to a prospective buyer and


found        a     partially decomposed body.                     Scrawled above the body           on


the         wall        were       the   words     “I     hate      niggers     death.”      Police


ultimately              identified the body as that of                  Tonnie     Storey.         The


evidence presented during trial included Brown’s fingerprints                                       on


a     Michael           Jackson button Tonnie had been wearing                     the     day     she


disappeared.                 Brown admitted to another individual that                     she     had


killed Tonnie “for her clothes” and that she, Brown, “had                                    to     do


what        [she]        had       to do.”    The state further introduced                 evidence


linking           Brown        to at least five other murders and several                        other


attempted           murders or assaults.                 After finding         Brown     guilty     of


Tonnie’s murder, the jury recommended and the trial judge imposed


a     sentence of death.                 Her conviction and sentence were                  affirmed


in     a     direct           appeal to the court of appeals and to this                     court.


See        State        v. Brown (Apr. 15, 1987), Hamilton App. No. C-850434,


unreported, 1987 WL 9743, affirmed (1988), 38 Ohio St.3d 305, 528


N.E.2d           523.         On    January      10,     1991,      former     Governor     Celeste
purportedly          commuted Brown’s death sentence to life imprisonment


without parole eligibility.


                                                  D


           On the morning of August 5, 1983, Willie Lee Jester entered


an    AmeriTrust            Company      branch office in Cleveland,         Ohio,     soon


after       it    opened          for   the    day.   Jester    approached     Patrolman


Benjamin         Grair, the bank’s security guard, while he was                  sitting


at    a     desk speaking on the telephone and shot him in the                       chest.


Jester       then ran to the bank counter, leaped over it, and took                       a


total of $3,122 from a teller’s drawer. Patrolman Grair died as a


result of the gunshot wound to his torso.                      The fatal injuries        to


his       heart, right lung and liver were caused by a single, hollow-


point       bullet      —     a bullet specifically designed           to    cause     more


damage than a smooth-point bullet.                    Upon finding Jester guilty of


aggravated         murder with two specifications, the jury                  recommended


and       the trial court imposed a sentence of death.                  The conviction


and       sentence      were affirmed in a direct appeal to the                court     of


appeals and to this court.                    See State v. Jester (Sept. 26, 1985),


Cuyahoga         App.       No.     49065, unreported, 1985       WL   8631,    affirmed
(1987), 32 Ohio St.3d 147, 512 N.E.2d 962.                               On January 10,              1991,


former       Governor Celeste purportedly commuted the death                                   sentence


to life imprisonment without parole eligibility.


                                                         E


         A    three-judge                panel     in        Hamilton   County        convicted           and


sentenced Elizabeth Green to death for aggravated murder and to a


consecutive             term        of    ten to twenty-five            years        for     aggravated


robbery.          The convictions stemmed from the killing and robbery of


Thomas       Willis,           a     neighbor of one of Green’s                 friends,           Belinda


Coulter.           On     January          4, 1988, Coulter sold            Willis           some     food


stamps       so     that           she and Green could in turn              use        the     cash        to


purchase          drugs.            Later that day, Green, with                 Coulter,           entered


Willis’s          apartment wearing socks on her hands                          so     as     to     avoid


leaving any fingerprints.                        Green then stabbed Willis and took his


money.       Thomas Willis died as a result of one hundred nine                                      knife


wounds       to     his        neck,       torso        and arms.       Green        admitted        to     a


psychologist that she had participated in the attack but                                           claimed


she   had stabbed Willis only three times.                              Green’s conviction and


sentence          of death were affirmed in a direct appeal to the                                   court
of    appeals         and     to this court.        See State v.     Green        (July        11,


1990),        Hamilton App. No. C-880504, unreported,                 1990        WL        95357,


affirmed (1993), 66 Ohio St.3d 141, 609 N.E.2d 1253.                             On     January


10,     1991,     former Governor Celeste purportedly commuted                          Green’s


death sentence to life imprisonment without parole eligibility.


                                                F


         A     jury     convicted Lee “Crazy Horse” Seiber              of        aggravated


murder with three death penalty specifications in connection with


the killing of Stanton Norris.                  On May 21, 1985, Seiber entered a


Columbus bar for the second time that evening, carrying a loaded,


cocked        .38 caliber revolver.            An accomplice stood at the                   closed


front door, shotgun in hand, barring anyone from leaving.                                   Seiber


had     returned        to     the bar to confront two men, Alvie                 and        Louis


Schoenberger,           one     of     whom   had criticized       Seiber        during        his


earlier        visit        for making lewd remarks to a woman              in        the     bar.


After        forcing        the brothers to lie face down on           the        floor        and


holding        them at gunpoint, Seiber threatened the crowd and                             tried


to    find      out     who     were     friends of the Schoenbergers.                  Stanton


Norris,        who was drinking a beer at the bar, admitted to being                             a
friend of the Schoenbergers.                When Norris refused to comply                    with


his order to lie face down on the floor, Seiber grabbed Norris by


the     shoulders           and   fatally shot him        in   the     back.      The        jury


recommended           and     the trial court imposed a          sentence        of        death.


Seiber’s           conviction and sentence were affirmed on direct                         appeal


to    the      court of appeals and to this court.                   See State v. Seiber


(June       8, 1989), Franklin App. No. 87AP-530, unreported, 1989                             WL


61733,        affirmed        (1990), 56 Ohio St.3d 4, 564             N.E.2d     408.         On


January        10,     1991, former Governor Celeste purportedly                      commuted


the      death         sentence      to   life       imprisonment       without            parole


eligibility.


                                                 G


         Rosalie        Grant      was convicted by a jury of            two     counts        of


aggravated           murder,      each with two death penalty            specifications,


and     one        count of aggravated arson.            The evidence      presented           at


trial       revealed that around 6:00 a.m. on April 1,                    1983,        a     fire


ignited        in     the bedroom of Grant’s two infant sons, one-year-old


Donovan and two-year-old Joseph.                     The boys died in the fire as               a


result        of     severe burns and smoke inhalation.                 Grant,        however,
escaped        from the burning house entirely unharmed, fully                         dressed


in pants, jacket, shoes and socks, with unsinged hair, no soot on


her     face     or        eyes,     and free of any signs of smoke                inhalation.


Other     than        Grant’s claim that she had tried to save her                       babies


when     the     smoke first awoke her, there was no evidence presented


that     Grant        had        attempted to put out the fire or             to     save    the


children.        Arson investigators determined that the fire had                           been


intentionally              set     and    fueled     by   a   liquid     accelerant.          No


determination              was made as to the exact type of               accelerant        that


had     been used. The evidence also revealed that approximately two


weeks     before the fire, Grant had purchased $5,000 worth of                              life


insurance        for        each     of    the     boys   with   Grant     listed      as    the


beneficiary.           Grant had not purchased a policy for herself or for


her     three-year-old daughter Shylene, who was                       living       elsewhere.


Furthermore,           a     can of charcoal lighter fluid,               bearing      Grant’s


fingerprints, and a partially burned kitchen chair matching those


in     Grant’s home were found four days after the fire in a                             nearby


vacant     house.            The     conviction and sentence           were     affirmed      on


direct     appeal           to the court of appeals and to this                 court.       See
State        v.     Grant (Nov. 9, 1990), Mahoning App. No. 83             C.A.         144,


unreported, 1990 WL 176825, affirmed (1993), 67 Ohio                      St.3d         465,


620     N.E.2d           50.      On January 10, 1991, former     Governor        Celeste


purportedly              commuted Grant’s death sentence to life imprisonment


with no restriction as to parole eligibility.


                                                H


         According              to the court of appeals’ opinion, in       May      1979,


Ralph        F.     DeLeo        pled guilty to the murder of Dr.     Walter        Bond.


After        pleading           guilty, DeLeo was immediately     sentenced        to     an


indefinite term of fifteen years to life imprisonment.                       In     1989,


the     court        of        appeals affirmed the trial court’s     dismissal           of


DeLeo’s           petition for enforcement of a plea bargain as to parole,


or,     in the alternative, a petition to vacate the conviction                          and


sentence.           See State v. DeLeo (Sept. 19, 1989), Franklin App. No.


89AP-107,           unreported,        1989 WL 107559.    On    January    10,      1991,


former Governor Celeste purportedly commuted DeLeo’s sentence                             to


time served.


                                                I


         A        jury     convicted     John   Salim of felonious    assault           with
violence        and gun specifications in connection with     an   incident


that occurred on January 23, 1988.          The evidence, as set forth in


the     court     of appeals’ opinion, showed that on that     date      Salim


fired     a gun at William Terbrack as the latter prepared to            drive


out of a hardware store parking lot.          A bullet was retrieved from


the     window post on the passenger side of Terbrack’s car.             Salim


was     sentenced to three years’ actual incarceration for         the     gun


specification to be served prior to a three-to fifteen-year               term


for felonious assault.         The conviction and sentence were affirmed


on     appeal to the court of appeals.       See State v. Salim (May       17,


1990),     Cuyahoga App. Nos. 56925 and 57964, unreported,         1990     WL


66467.      On January 10, 1991, former Governor Celeste purportedly


granted Salim a full pardon.          As the above facts indicate,       among


those     who     purportedly received clemency    from   former   Governor


Celeste     were     some of the most notorious killers on     death      row.


Celeste     made     the   clemency decisions without awaiting     the     APA


investigation        and   report.   Yet, given the per   curiam   opinion,


only     the unfortunate John Salim, who supposed he had received            a


full pardon (as opposed to a commutation), must pay the price for
Celeste’s wholesale disregard of the Constitution.


                                               II


         While I agree with the per curiam opinion that Section                            11,


Article       III    of      the    Ohio Constitution authorizes           the       General


Assembly        to     prescribe          procedural   regulations        as        to     the


application process for executive clemency, my interpretation                               of


Section       11, Article III convinces me that the authority                        granted


by     the    “subject to” clause to regulate “the manner of                        applying


for     pardons” includes commutations.                The per curiam opinion pays


lip     service      to      the    history behind the       evolution         of    current


Section       11,    Article III, without realizing the consequences                        of


that     evolution.           A thoughtful analysis of the addition                  of    the


“subject to” requirement of the Ohio Constitution should                             include


consideration          of     the reason that clause         was   added.           The    per


curiam       opinion        fails    to     consider   and   put   into        effect      the


intention of the drafters of Section 11, Article III.


         At the 1850-1851 Ohio Constitutional Convention, the debate


on Section 11, Article III was limited to the so-called reporting


requirement,         the last sentence of Section 11,              Article          III.     A
delegate, Mr. Riddle, commenting on the insertion of the                        clause,


stated:        “It was known that the exercise of [the pardoning] power


was much complained of. * * * [I]t was but too easy to excite the


sympathies of men in behalf of the convicted criminal.                        Gentlemen


of    the committee were aware from their own experience that                         they


had    often         put     their names to papers soliciting         reprieves        and


pardons        on     the     representation of persons,      in     whom     they     had


confidence.           They knew also that persons in the same manner might


influence           the     governor;   and they    further   knew     that     on     the


strength of that influence brought to bear on him by the names of


persons standing high in society he often exercised that power in


instances           in which the public could not see any propriety.                   The


power,        no doubt, had been abused, but when they looked into                     the


entire matter they would find that no blame could be attached                           to


the    Governor.”            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.


         In     choosing        to   alter   its   constitutional      provision        on


executive           clemency, Ohio adopted a provision remarkably               similar
to     that        incorporated              by        the     state    of     New     York     into     its


Constitution of 1846.8                      Only a brief discussion of the                      New     York


debates       is     necessary              to     illustrate that             Ohio’s     drafters        of


Section       11,        Article III must have been motivated                            by     the     same


concerns       as        New        York’s drafters when                they     decided        to     place


restrictions             on        the Governor’s pardoning power.                       The     recorded


proceedings          of        the     New        York Constitutional                Convention        which


authored       the provision altering that state’s executive pardoning


powers     reveal             that the provision was extensively                         debated.         In


particular,              several            amendments           were    offered         relative         to


restrictions on the Governor’s pardoning power, including one, by


a Mr. Chatfield, that would have greatly curtailed the Governor’s


pardoning power by making it subject to “such restrictions as may


be    prescribed by law.”                    Report of the Debates and Proceedings of


the    Convention for the Revision of the Constitution of the State


of    New York (1846) 351.                       This Chatfield amendment ultimately was


rejected,          id.        at     353,        and     the     wording       “subject         to      such


regulations as may be provided by law relative to the                                          manner     of


applying       for pardons,” proposed by Mr. Taylor, was adopted.                                         In
support of his position, Mr. Taylor “agreed that there should                              be


some conditions relative to the manner of applying the power, and


he    would offer an amendment to carry his idea out in relation to


that.     This would leave the Legislature to provide rules for                           its


carrying out, leaving the exercise of the power entirely with the


Governor.”       Id. at 357.


         Since the “subject to” clause of Section 11, Article III of


the     Ohio    Constitution mirrors so closely the                language        of     New


York’s     comparable section, it is fair to assume                  that        the     Ohio


delegates of 1850-1851 shared New York’s concerns about abuses of


the     pardoning     power, while also sharing the conviction                     of     New


York’s     delegates     that        the Governor’s      ultimate     discretion           to


exercise       the   pardoning        power should      not   be    infringed.            The


“subject       to”   clause     is     a   compromise     which     reflects            those


concerns.


        Ohio’s 1802 Constitution, in Section 5, Article II, gave the


Governor “the power to grant reprieves and pardons.”                        No     mention


of    commutations      was included in this authorization.                      The     word


“commutations”        was added in 1851 to Section 11, Article                     III     at
the     Constitutional Convention of 1850-1851, which also added the


“subject to” clause at the end of the same sentence.


         “The        terms ‘pardon’ and ‘reprieve’ have been adopted                            into


the     constitution           of this state without defining                or     explaining


them.”        Sterling v. Drake (1876), 29 Ohio St. 457, 460.                          Just          as


“pardon”        and        “reprieve” are not defined        in        the     Constitution,


“commutation” also is not defined, so that we must                             look       to        the


common        law     for     its meaning.      Although current statutes                   define


these        terms,9        those statutory definitions           do     not       necessarily


control the consideration of their meanings in the Constitution.


         In     State ex rel. Gordon v. Zangerle (1940), 136                          Ohio          St.


371,     375,        16     O.O.   536, 538, 26 N.E.2d       190,        194,       the        court


considered           the     “scope     of   the executive    power”           conferred             by


Section        11, Article III, determining that the common-law meaning


of     the     terms “reprieves” and “commutations” are “not materially


different”           from the statutory definitions (which                   are      the       same


today).         Thus, the court noted, a reprieve was defined as                               “‘the


temporary           suspension        by the Governor   of    the        execution             of     a


sentence,’10 and commutation of sentence as ‘the substitution                                        of
a lesser for a greater punishment.’”                     Id.


         The        Gordon      court     went on to consider the          definition          of


“pardon” and the different forms of pardon:


         “A     pardon may be absolute or conditional, full or partial;


and a conditional pardon may be granted upon conditions precedent


or subsequent.


         “A     full      pardon        purges   away all      guilt     and     leaves       the


recipient           from a legal standpoint, in the same condition                      as     if


the crime had never been committed (Knapp v. Thomas, 39 Ohio St.,


377,     381,        48   Am.     Rep., 462); a partial pardon             releases          from


punishment without remission of guilt.                      Lee v. Murphy, 63 Va. (22


Gratt.), 789, 12 Am. Rep., 563.                     The essential characteristics of


full and partial pardons are such that either may be granted with


or without conditions. * * *


         “ An absolute pardon sets the accused free from the custody


of     the     law, prevents further court action, terminates                         existing


probation and makes anticipated probation impossible. * * *


             “The     power      of     executive     pardon    carries        with    it,     as


incidental           thereto, the right to impose such                 valid     conditions,
precedent or subsequent, as the pardoning power may determine.* *


*”     Gordon, 136 Ohio St. at 376-377, 16 O.O. at 538, 26 N.E.2d at


194.


        The per curiam opinion appears to equate “pardon” with “full


and     unconditional pardon.”           However, as the passage from                    Gordon


illustrates, the word “pardon” encompasses several                       concepts.              A


“full     and     unconditional” pardon, which           purges        all        guilt       and


places the recipient in the same position as if no crime had been


committed,        is only one subset of the several types                    of     pardons.


Another     type of pardon, a “partial” pardon, which releases                               from


punishment        without       remitting guilt,      appears     to     be        virtually


synonymous with a “commutation,” which substitutes a lesser for a


greater punishment, but does not remit guilt.                    Any definition                of


“pardon”        which     limits its meaning to clemency           actions              of    the


Governor        that     remit guilt is a narrow definition.                  While          this


narrow      definition          may   appropriately     be      applied            in        some


situations, the common-law meaning of “pardon,” when                          applied          in


the     broader        sense,    also can easily encompass         the        concept          of


commutation, so that commutation is a subset of pardon.
         The       per     curiam opinion’s citation of State ex rel.                           Atty.


Gen.     v.    Peters        (1885), 43 Ohio St. 629, 4 N.E.                  81,     does        not


establish that pardons and commutations are in all cases mutually


exclusive          terms.        In     fact,    the per     curiam        opinion        includes


Peters’s definition of pardon among the material quoted from that


case:     “A pardon discharges the individual designated from all or


some     specified penal consequences of his crime.                          It may be           full


or partial, absolute or conditional.”


(Emphasis          added.)        Id. at 650, 4 N.E. at          87.         By     the     Peters


definition,          a     partial pardon (which discharges                  the     individual


from     “some * * * penal consequences of his crime”) is                             a     pardon


just     as    a     “full       and absolute pardon” is a pardon.                    The        very


language quoted belies the per curiam opinion’s conclusion.                                       The


constitutional             meaning of “pardon,” as well               as     the     common-law


meaning of the word, is by no means precise.                          It is not possible,


as     the per curiam opinion attempts, to conclude that pardons and


commutations             are two totally distinct concepts.                  Recognition           of


the      ambiguity          in    the     word    “pardon”     instead        leads        to     the


conclusion that commutation is a subset of pardon when pardon                                      is
used     in     the inclusive sense, and that the “subject                    to”     clause


clearly does provide the authority to regulate commutations.


         In this case, defendant Ralph DeLeo purportedly received                             a


commutation         to         time        served,   while    defendant      John         Salim


purportedly        received           a     full pardon.     The   per    curiam     opinion


upholds        DeLeo’s        purported commutation, but invalidates                 Salim’s


purported full pardon.                    Yet, under the definition of “pardon” set


forth     in     Peters and in Gordon, what DeLeo purportedly                       received


could     just as easily be termed a partial pardon, in which                             case,


presumably according to the per curiam opinion, Governor                             Celeste


would     have had to await the APA investigation and recommendation


before granting clemency to time served.                       This point, as much           as


any     other,     belies the per curiam opinion’s assertion                       that     the


word     “pardon”        is     used        with precision throughout        Section        11,


Article III.


         When     Section 11, Article III was adopted in 1851                       and     the


power     of     commutation was specifically mentioned as one                       of     the


Governor’s        clemency powers, the delegates to the                    Constitutional


Convention        of 1850-1851 were either conferring a new                    power        for
the     Governor           to exercise, or they were explicitly conferring                               a


power      which           had     been        implicit        in    the     1802     Constitution’s


conferral           of the power to grant pardons.                         If the delegates           were


conferring a new power, then it would be safe to assume that                                           the


power     to        grant        commutations was              considered       to     be   something


different from the power to grant pardons, and was not to be made


subject        to     regulations              “as     to     the    manner     of     applying        for


pardons.”            But        if the delegates were confirming a                      power        which


already existed under the power to grant pardons, then it may                                           be


fairly concluded that the use of the phrase “as to the manner                                           of


applying        for        pardons” in the “subject to” clause was                          meant       to


include the commutation power.                          If the latter is the case, and if


the      word        “pardon”           is     broad        enough    to     encompass      the       word


“commutation”              in     this way, then Section 11,                   Article      III       uses


“pardon”        in two senses:                 in a limited way as one aspect                   of     the


clemency        powers           in the first clause of the                   first     sentence        of


Section 11, Article III, and also, in the “subject to” clause, in


an expansive way that includes the concept of “commutation.”


         The        records        of        the     debates of the          Ohio     Constitutional
Convention of 1850-1851 give no insight into why the “subject to”


clause     of     Section 11, Article III uses the                words       “as     to     the


manner     of     applying       for pardons,” or into           whether        Section       5,


Article        II of the Ohio Constitution of 1802 conferred on                           Ohio’s


Governor the power to commute sentences.


         However,        the    discussions regarding the             addition        of     the


reporting requirement to the executive clemency provision of                                 the


Constitution at the 1850-1851 Constitutional Convention do reveal


that     many     of     the    delegates       indiscriminately         used       the     term


“pardon” to refer generically to the Governor’s clemency power.


         One     delegate,       Mr. Riddle, stated that             “[t]he        [Executive


Department]            committee      inserted     that     clause     [the         reporting


requirement]            into    the    report     for     the   purpose,           that      the


legislature           at its annual or biennial sessions might                     know     what


the    Governor had done during the vacation in the exercise of the


pardoning        power.”       (Emphasis added.)          1 Debates and Proceedings,


supra,     at     306.     Because the reporting requirement                  as     proposed


required        the     Governor to communicate “each             case     of       reprieve,


commutation,           or pardon granted,” id. at 300,11 Mr.                  Riddle        thus
used     the inclusive term “pardoning power” to refer to the                                  power


to grant any type of executive clemency.


        Similarly, another delegate, Mr. McCormick, thought that the


provision            requiring          the    Governor     to   report      each     reprieve,


commutation,               or     pardon      granted     “required       nothing         to      be


communicated to the Legislature except the names of                             the       persons


pardoned.            If men had interfered improperly in getting reprieves


for criminals, there was nothing in that section as it now stood,


which required the naming of the persons who interfered to obtain


it     * * *.        The only object to be gained by this section was                            the


ascertainment              of     the    number of      prisoners     pardoned        *    *     *.”


(Emphasis added.)                 Id. at 307.      Mr. McCormick thus used the                  word


“pardon”        in     a        broad    sense to refer to any         act     of     executive


clemency.


        Another delegate, Mr. Stanton, opposed a proposal to further


require     the Governor to report the names of all persons who                                  had


applied for a reprieve, pardon or commutation.                            “He supposed that


the     latter        part of the section was intended for the purpose                            of


making the Governor accountable to the people for the exercise of
the     pardoning       power, and to inform them whom he had              pardoned.”


(Emphasis added.)             Id.


         Yet     another       delegate,   Mr. Larwill,    stated     that     “[t]he


Governor        would    no     doubt have good reasons for       exercising         the


pardoning power.”             (Emphasis added.)   Id.


         These delegates’ statements persuasively refute defendants’


argument        that the framers of Section 11, Article             III     used     the


word     “pardon” in a narrow sense that did not include the concept


of     commutation.           Many   of the delegates at    the     Constitutional


Convention        of 1850-1851 used “pardoning power” to mean                clemency


power.         Furthermore, the word “pardon” was used to refer to                   any


executive exercise of the clemency power.


        Not long after Ohio (in 1851) had amended its Constitution’s


executive clemency provision to specifically include the power to


grant     commutations, the United States Supreme Court                   decided     Ex


Parte Wells (1855), 59 U.S. (18 How.) 307, 15 L.Ed. 421.                      In     the


words of the court:


         “The petitioner was convicted of murder in the District                      of


Columbia,        and    sentenced to be hung on the 23d of           April,        1852.
President        Fillmore           granted to him a       conditional        pardon.         The


material        part        of     it   is   as follows:      ‘For     divers        good     and


sufficient reasons I have granted, and do hereby grant unto                                  him,


the     said William Wells, a pardon of the offense of which he                               was


convicted        —     upon        condition that he be       imprisoned           during     his


natural        life; that is, the sentence of death is hereby                         commuted


to imprisonment for life * * *.’”                    Id. at 308, 15 L.Ed. at 423.


         Wells petitioned for a writ of habeas corpus, pointing                               out


that     Section        2,        Article II of the United       States        Constitution


authorizes the President to grant pardons and reprieves, but does


not explicitly authorize the President to place conditions upon a


grant     of     pardon.            Wells    argued that     Section     2,        Article     II


authorizes           only        absolute pardons, and that since             he     had     been


pardoned under the authority conferred by that section,                               he     must


have     received such an absolute pardon with a void condition,                               so


that his sentence actually was remitted entirely.                         Id. at 309, 15


L.Ed.     at     423.            The Circuit Court of the District             of     Columbia


refused the application, and the Supreme Court affirmed.


         The court in Ex Parte Wells determined that the President’s
power            to        grant     “conditional       pardons”12      (commutations)                 was


implicit              within        the    power     to grant     “reprieves     and        pardons”


conferred              by     Section       2,     Article   II    of   the    United            States


Constitution.                  In     so    determining, the        court     found     that           the


petitioner’s argument was mistaken, “arising from the want of due


consideration                 of the legal meaning of the word                pardon.            It     is


supposed              that it was meant to be used exclusively with reference


to     an        absolute pardon, exempting a criminal from the punishment


which        the law inflicts for a crime he has committed.”                                59        U.S.


(18 How.) at 309, 15 L.Ed. at 423.


            The        Ex Parte Wells court determined that the word “pardon”


is     not        so narrow as to include only an “absolute pardon”:                                   “In


the     law it has different meanings, which were as well understood


when        the        Constitution was made as any other legal word                         in        the


Constitution                 now is.”       Id. at 310, 15 L.Ed. at 423.               The        court


went        on        to     state that “[i]n this view of the constitution,                            by


giving           to        its words their proper meaning, the power                   to        pardon


conditionally                 is not one of inference at all, but one                   conferred


in terms.
         “The mistake in the argument is, in considering an incident


of     the     power to pardon the exercise of a new power, instead                of


its     being a part of the power to pardon.”            Id. at 315, 15         L.Ed.


at 425.


         If     the United States Supreme Court determined in 1855 that


the     President’s power to commute a sentence is implicit                in     the


power to pardon, it is reasonable to assume that Ohio’s Governors


operating           under    the authority of the state’s 1802     Constitution


also     had the implicit power to commute sentences, since the 1802


Ohio     Constitution’s          provision   on   executive   clemency     closely


resembled           that of the United States Constitution.       The delegates


to     the 1850-1851 Constitutional Convention therefore did not add


a     totally        new    power to the Constitution    by   adding     the     word


“commutations” in adopting Section 11, Article III, but                   affirmed


a power the Governor already possessed.13


         It     is apparent that the inclusion of “commutations” in the


first        line     of Section 11, Article III as one of the         Governor’s


clemency powers was done to quiet doubt that the power to                      pardon


was so limited that it did not include the power to commute.                      The
meaning        of “pardon” was not thereby magically altered into                      some


precise        word with only one connotation.        The statements             of     the


delegates to the 1850-1851 Constitutional Convention indicate the


imprecision of the word “pardon.”              In addition, R.C. 2967.01(B)’s


provision        that     pardons may be “partial,”        and     the    Peters        and


Gordon         courts’      recognition   of     partial         pardons,        further


demonstrate that a “full and absolute pardon” is only one type of


pardon, and that there is an overlap between the generic sense of


the     word     “pardon” and the concept of commutation.                Thus,        since


the power of commutation can be understood to be contained within


the     power     to     pardon (in its broad sense) Section             11,     Article


III’s provision that the Governor’s power to commute (as well                            as


to     pardon)     is “subject * * * to * * * regulations,                as     to     the


manner     of     applying     for   pardons” is broad       enough       to     include


regulations as to the manner of applying for commutations.


        In short, even though the power to grant commutations may be


a     power distinct from the power to grant pardons, the common-law


meaning        of “pardon” included “commutation.”           Section 11, Article


III     clearly subjects the Governor’s power to grant commutations,
as     well     as the Governor’s power to grant pardons, to authorized


regulations.            Hence     the Governor’s power to grant                     commutations


pursuant        to     Section 11, Article III is subject                  to        regulations


enacted by the General Assembly as to the application process.


             Defendants         argue         that   the    omission       of         the        word


“commutations”           from     the        “subject to”     clause     of         Section       11,


Article III reflects a conscious decision by the drafters to make


only     the     manner of applying for pardons, and not                        commutations,


subject        to regulation.           Defendants claim that a pardon,                     because


it remits guilt as well as punishment so that the recipient is in


the     same     position        as if no crime had been            committed,              is    the


ultimate act and was meant to be singled out.                          They further claim


that     a     commutation,        which        merely reduces      punishment              without


remitting        guilt,     is     a lesser degree of            clemency           and     so    was


intentionally left out of the “subject to” clause.


         Defendants’ reasoning is specious.                     Although        a     “full       and


unconditional”            pardon        is     the   ultimate     pardon,            whether        a


commutation differs greatly from a pardon is in the                                 eye     of    the


beholder.            To the recipient of a full and unconditional                           pardon,
that     pardon           is     much   different   from    a   commutation          (even     a


commutation              to     time served, which would also remit               punishment)


because        the        full pardon relieves the recipient of               disabilities


associated with the finding of guilt and wipes the record                              clean.


However,           to society as a whole, there is virtually no difference


between        a        commutation to time served and          a     full    pardon.         As


mentioned           earlier, defendant DeLeo in this case was                     purportedly


granted        a        commutation to time served, and defendant                  Salim     was


purportedly              granted a full pardon, yet the             action    of     Governor


Celeste        allowed both offenders to receive clemency                     despite        the


determination of guilt in the judicial system which                           led     to     the


imposition of the original longer terms of punishment.                               Although


some     of the purported commutations in this case reduced a                              death


sentence           to     life imprisonment without parole, and               so     did     not


effect the release of the recipients, commutations, like pardons,


are     very        significant         actions by the     Governor.         To     permit     a


Governor           in     the     last hours of his term to          grant    commutations


without first applying to the APA would be a devastating blow                                 in


a     day when victims’ rights are finally being recognized.                           One of
the     most    important         factors under          R.C.     Chapter     2967     is     the


requirement        that at least three weeks before the APA                         recommends


any pardon or commutation, notice of the pendency of the clemency


application        must     be “sent to the prosecuting attorney                      and     the


judge     of    the court of common pleas of the county in                          which     the


indictment       against         the     convict       was     found.”      R.C.      2967.12.


Additionally,        under certain circumstances the APA                      must     send     a


similar notice to the victim of the crime, or to a representative


member of the victim’s family.                      R.C. 2967.12(B).        There are        very


good     reasons for these requirements.                     One is to avoid the            shock


the     families of the victims would encounter when they first hear


over     the news that the sentences of the convicts who senselessly


murdered their loved ones were commuted.


         Lastly,     the        doctrine       of     expressio     unius     est     exclusio


alterius       has no application regarding the “subject                       to”     clause.


Even     though the words “commutation” and “pardon” appear together


elsewhere       three times in Section 11, Article III, the fact                             that


the      “subject         to”         clause    does     not      specifically         mention


commutations        does        not     require a narrow          reading     of     the     word
“pardons”        in     that        clause.      It is readily          apparent       that    the


“subject to” clause was inserted into Section 11, Article III                                   as


a   compromise          to regulate the application process                     invoking       the


entire     clemency power, and not just the power to                           grant     pardons


(with     pardon        used        in its narrow sense).              More    significantly,


consideration               of      the     debates   of   the        Ohio     Constitutional


Convention        of        1850-1851 regarding the reporting requirement                       of


Section     11,        Article        III     makes it readily          apparent       that    the


drafters        did     not use the terms “pardon” and “commutation”                          with


the precision which would require a finding that “pardons” in the


Ssubject to” clause does not include commutations.


         Since        the        application process leading to               the   Governor’s


grant     of clemency was seen as subject to abuse, the drafters                                of


Section     11, Article III allowed regulations to be prescribed                                to


curb     that     abuse.            Those regulations were             authorized       for    the


application           process,        whether initiated          by     the    applicant       (or


someone     on the applicant’s behalf) or by the Governor,                              but    the


power of the Governor to act is specifically exercised subject to


the regulations.                 A Governor may in certain situations choose                    to
grant only a commutation when the applicant may have applied                                  for


a     full        pardon.        The interrelationship of the concepts of pardon


and commutation cannot be ignored, an interrelationship obviously


recognized              by     the reported statements of the delegates             to        the


Ohio Constitutional Convention of 1850-1851.                      It is inconceivable


that the omission of the word “commutation” from the “subject to”


clause was intended to exclude commutations from regulation.


                                                III


         From           the foregoing it is apparent that Section 11, Article


III     authorizes the General Assembly to regulate the                      application


process           for        executive clemency, whether it is       a     pardon        or     a


commutation              which is being considered.          I emphatically     disagree


with the per curiam opinion’s conclusion that Section 11, Article


III     authorizes regulations only with respect to pardons, and not


commutations.                  The    per curiam opinion’s     misguided     attempt           to


sever        the supposedly offending portions of R.C. 2967.07 is                         made


necessary by its equally misguided conclusion that the Governor’s


power        to     commute          sentences is unfettered by the        Constitution.


R.C. 2967.07 is constitutional in toto, and makes APA involvement
mandatory               before        the     Governor     may    grant        a    pardon         or      a


commutation.


         In view of today’s decision it should become a top priority


of     the        citizens        of        this state to ensure          that       such     reckless


behavior on the part of a Governor will not be repeated.                                           It     is


ironic        that the reasons for amending the Constitution today                                       are


similar           to        the reasons the 1850-1851 Constitutional                        Convention


amended the Constitution of 1802.                          The delegates to the 1850-1851


Constitutional                 Convention        felt     the    need     to        enumerate            the


Governor’s              pardoning powers.           Even though the 1802                  Constitution


did     give the Governor power to commute, there remained                                    a     small


degree        of doubt (later put to rest by the United States                                    Supreme


Court        in        Ex     Parte     Wells)     that     it    did     not,       so     the         Ohio


Constitution was amended to clarify the matter.                                    In much the same


way,     it appears that our Constitution must be amended to specify


that     the           manner of applying for clemency includes                           applications


for commutations as well as for pardons.                            While it is clear to me


that no such amendment should be necessary, members of this court


do     not agree.              After this case, I am strongly convinced that                              it
is    time         for        the    people of Ohio to consider     a   constitutional


amendment           placing          explicit and unavoidable limitations           on     the


Governor’s clemency power (including the power to pardon                            and     to


commute,           but not to reprieve), to go so far as to place specific


limits        on        the     Governor’s discretion in the use of           the    power.


While I agree that the pardoning power is an indispensable aspect


of    our      criminal             justice system, the   pardoning     power       is     too


important           to        be trusted with relatively few conditions             to     the


unfettered whims of a lame duck Governor.


       I would reverse the judgment of the court of appeals in case


No.    93-1165 and reinstate the declaratory judgment of the                             trial


court that the purported pardon and commutations are invalid.


         Douglas              and    F.E. Sweeney, JJ., concur     in   the     foregoing


opinion.


FOOTNOTES:


6.       It        is     appropriate       to refer to the Governor’s         “pardoning


power”        synonymously with “clemency power.”                The power to commute


has historically been understood to be an aspect of the pardoning


power.        For a thorough discussion of the development and scope of
the     pardoning power of the President of the United                             States,        see


Hoffa v. Saxbe (D.D.C.1974), 378 F.Supp. 1221.


7.       With        respect to the manner in which the Ohio Adult                          Parole


Authority functions, the trial court found as follows:


          “When        the        APA   receives     a    clemency        application,            the


application is referred to the investigation section of the                                      APA,


which     prepares           a     report     on the details         of    the     crimes,        the


applicant’s           adjustment         to    prison or       the     community,         and     the


support     available to the applicant in the community.                              When        the


completed        investigation report is received by the Parole                             Board,


an initial vote is taken whether to immediately recommend against


granting clemency or to conduct a hearing.                           If a hearing is to be


conducted, notice is sent to the local Prosecutor, the sentencing


Judge, and those victims or victims’ family members designated to


receive     notice           by     R.C. §§ 4943.04(A) and             2945.07(A),         and     as


required         by     R.C.        §   2967.12(A)       and    (B).       These      obviously


interested individuals are then given the opportunity                                to     submit


comments        to     the        APA   on whether the applicant             should        receive


clemency.        Generally, these individuals are allowed three                             weeks’
time     within which to respond to the APA notice.            At the hearing,


consisting        of a panel of at least a majority of the            members          of


the     Parole Board, the Board will consider the investigation, the


microfiche        records of the Ohio Department of Rehabilitation                    and


Corrections, and the testimony of the applicant.               After a vote is


taken,     a report is then prepared for the signature of the                    board


members.        See R.C. §§ 2967.07 and 2967.12.      Usually, there             is     a


two     to three week delay after the vote is taken to circulate the


recommendations         among the voting Board members,        who        travel       to


each     of Ohio’s 22 penal institutions attending hearings.                     After


signature,        the   APA submits the written report to           the     Governor


which     includes      a    brief statement of the   facts     in        the    case,


together        with the recommendation of the APA.         In such        instances


that an application is submitted directly to the Governor, it                          is


still     required      to    be   channeled back through     the     APA       review


process pursuant to R.C. § 2967.07.”


8.       Section 5, Article IV of the New York Constitution of                     1846


provided:


         “The     governor     shall have the power   to     grant        reprieves,
commutations,         and    pardons after conviction,      for     all     offenses


except treason and cases of impeachment, upon such conditions and


with    such restrictions and limitations, as he may think                   proper,


subject to such regulation as may be provided by law relative                           to


the    manner    of       applying for pardons. * * *      He     shall     annually


communicate         to      the    legislature   each    case      of      reprieve,


commutation, or pardon granted, stating the name of the                     convict,


the    crime of which he was convicted, the sentence and its                      date,


and    the date of the commutation, pardon or reprieve.”                   New        York


State Constitution Annotated (1938) 54.


       When Ohio’s Constitutional Convention of 1850-1851 discussed


the    substance of what was to become Section 11, Article                   III        of


the Constitution of 1851, the Standing Committee on the Executive


Department      presented         for debate a draft    version     on     executive


clemency     which very closely resembled Section 5, Article                     IV     of


the    New   York        Constitution of 1846.     For the language         of        this


draft version, 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) 300.    The text of the    draft        version        is
reproduced in footnote 6 of this opinion.


9.         R.C. 2967.01(B) provides:


            “‘Pardon’ means the remission of penalty by the governor in


accordance           with        the     power vested in him by                the       constitution.


Pardons           may be granted after conviction and may be absolute                                       and


entire,           or partial, and may be granted upon conditions precedent


or subsequent.”


           R.C. 2967.01(C) provides:


            “‘Commutation’              or     ‘commutation           of    sentence’             means     the


substitution              by     the     governor         of     a    lesser       for        a      greater


punishment.               A sentence may be commuted without the                              consent        of


the         convict,           except        when   granted          upon    the     acceptance             and


performance           by        the     convict      of        conditions      precedent.                 After


commutation,              the     commuted sentence shall be                   the       only        one     in


existence.            The commutation may be stated in terms of                                    commuting


from        a     named        crime     to a lesser included crime,                     in        terms     of


commuting from a minimum and maximum sentence in months and years


to     a        minimum        and maximum sentence in months and years,                              or     in


terms of commuting from one definite sentence in months and years
to a lesser definite sentence in months and years.”


       R.C. 2967.01(D) provides:


        “‘Reprieve’ means the temporary suspension by the                          governor


of    the    execution           of     a sentence.     A reprieve   may     be        granted


without the consent of and against the will of the convict.”


10.     I    agree        that        reprieves do not fall      within     the        broader


meaning      of     “pardons.”           Reprieves and pardons are recognized               as


being fundamentally different at common law because a reprieve is


temporary.          However, pardons and commutations are not recognized


as    fundamentally          different at common law, but are               interrelated


concepts.         Even though the power to grant reprieves often is said


to    come    within the scope of the Governor’s pardoning                        power,     a


constitutional provision allowing procedural regulation                            of     “the


manner of applying for pardons” does not allow for regulation                               of


the     manner       of     applying        for   reprieves.      Because         of      this


fundamental difference between reprieves and pardons, Section                               5,


Article II of Ohio’s 1802 Constitution, and Section 2, Article II


of    the    United        States        Constitution     each   conferred        upon     the


executive the power to grant both reprieves and pardons.
          The      General        Assembly    has     recognized      the     fundamental


difference between pardons and reprieves.                    R.C. 2967.08        provides


that “[t]he governor may grant a reprieve for a definite time                             to


a     person     under     sentence of death, with or without                 notices     or


application.”        This provision obviously recognizes the importance


of     prompt     action     in some reprieve cases and makes                 clear     that


procedural        requirements need not be fulfilled before a                    reprieve


may be granted.           In addition, R.C. 2967.03, authorizing the Adult


Parole     Authority to recommend a pardon, commutation, or reprieve


to     the Governor, provides procedural requirements which must                          be


fulfilled        before     the     authority       may   recommend     a     pardon      or


commutation,         but      any      such     requirements          regarding          the


recommendation of a reprieve are conspicuously absent.


11.     As reported by Mr. Leadbetter from the Standing Committee on


the     Executive Department, the provision later incorporated                          into


the     Constitution of 1851 as Section 11, Article                    III     originally


read:


         “Sec.     11.      The     Governor shall have the           power     to     grant


reprieves,        commutations and pardons after              conviction,        for     all
offenses,           except     treason, and cases of impeachment,           upon       such


conditions, and such restrictions and limitations as he may think


proper,        subject to such regulations as may be provided                   by     law,


relative        to the manner of applying for pardons.               Upon conviction


for     treason, he shall have power to suspend the execution of the


sentence, until the case shall be reported to the Legislature                            at


its     next        meeting,     when the Legislature      shall     either      pardon,


commute        the     sentence, direct the execution of the sentence,                   or


grant     a further reprieve.              He shall annually communicate to             the


Legislature           each     case   of    reprieve,   commutation,       or        pardon


granted; stating the name of the convict, the crime for which                            he


was     convicted, the sentence and its date, and the                    date    of     the


commutation,           pardon     or reprieve.”     1 Debates      and    Proceedings,


supra, at 300.


         The        report of the Executive Committee reached its                present


form as Section 11, Article III after proposed amendments to                            the


committee report were debated by the delegates and voted on.


12.      The        court of appeals in the case sub judice went                to     some


lengths        to     distinguish between a commutation and a              conditional
pardon,       basing            the distinction in part upon                       the       necessity           of


acceptance by the recipient before a conditional pardon is valid.


However,        one        major        factor        that    separates            the       two    is          the


attachment        of        a        condition, which is what makes                      a     conditional


pardon       “conditional.”                 In the same way that a pardon can have                                a


condition        attached,              a commutation can           also           be    subject           to     a


condition.            It        is     when     the condition           is        attached         that         the


recipient         must           consent        before       the   conditional                 pardon            or


conditional           commutation is effective.                    No        consent          is    required


when       no condition is attached to the pardon or commutation.                                                In


re     Victor     (1877),              31     Ohio St. 206,        paragraph             three        of        the


syllabus, recognized that in Ohio, a commutation is not the                                                 same


as     a    conditional pardon, even though the Ex Parte                                      Wells        court


stated that it was for purposes of interpreting the United States


Constitution.              Since Victor presumed that a commutation                                 is      “for


the        culprit’s            benefit,”        no     acceptance           of     an       unconditional


commutation is required for its validity.                                See 31 Ohio               St.      206,


at paragraph three of the syllabus.


13.        One researcher has determined that the power to commute                                               is
implicit within the power to pardon:


       “The [Ohio] Constitutional Convention of 1851 added the term


‘commutation’          to the pardon provision in present section                 11     of


Article III.          However, the term ‘commutation,’ although not                    used


in    early     constitutions,       has long     been   interpreted     as        being


included       within     pardon, and texts have often not         disassociated


the    power     to     commute    from   the    power   to   pardon.”        3        Ohio


Constitutional          Revision    Commission     1970-1977,    Proceedings              &


Research of the Legislative-Executive Committee (Mar. 31,                         1972),


Research Study No. 11.
