In a 5-2 decision, the Supreme Court held that ProgressOhio.org, Ohio Senator Michael J. Skindell, and former Ohio House member Dennis E. Murray do not have standing, under the public-right doctrine to bring an action against the JobsOhio legislation.

In a 5-2 decision, the Supreme Court held that ProgressOhio.org, Ohio Senator Michael J. Skindell, and former Ohio House member Dennis E. Murray do not have standing, under the public-right doctrine to bring an action against the JobsOhio legislation.

The Supreme Court of Ohio ruled today that a public policy group and two legislators are not the proper parties to challenge the constitutionality of JobsOhio, the nonprofit economic development corporation formed by the state.

In a 5-2 decision, the Supreme Court held that ProgressOhio.org, Ohio Senator Michael J. Skindell, and former Ohio House member Dennis E. Murray do not have standing under the public-right doctrine to bring an action against the JobsOhio legislation. The court held that the public-right doctrine does not apply to lawsuits filed in common pleas courts, and that the parties would otherwise still fail to meet the requirements of the doctrine.

Nor do the parties have traditional standing to challenge JobsOhio because they do not have a personal stake in the outcome of the case, the court determined. The parties’ other claims of standing to file suit also fail, according to the court.

“[W]e do not hold … that no person could ever have standing to challenge JobsOhio,” Justice Judith L. French wrote for the majority. “A proper party — i.e., one with legal standing — may unquestionably contest the constitutionality of JobsOhio. As to that proper party, the courthouse doors remain open.”

When ProgressOhio.org, Skindell, and Murray filed this action in the Franklin County Common Pleas Court, they asked the court for a declaration that the JobsOhio Act violates the Ohio Constitution and for an order prohibiting JobsOhio from being formed and operating.

The common pleas court dismissed the case, finding that the parties did not have the right to sue. The Tenth District Court of Appeals agreed, and the parties appealed to the Ohio Supreme Court.

The appellants conceded that they have no personal stake in this lawsuit, so they instead asserted standing based on the public-right doctrine, taxpayer status, the Declaratory Judgment Act, and part of the JobsOhio Act.

The majority, while declining to address the overall validity of the public-right doctrine, held that the doctrine nevertheless applies only to certain actions – ones in mandamus or prohibition – not to declaratory judgment actions filed, as this case was, in a common pleas court. Regardless, the court concluded, the doctrine would not give ProgressOhio.org and the legislators standing to sue anyway because they did not present a rare and extraordinary issue that threatens serious injury to the public.

The parties did not assert their right to sue based on standing as taxpayers or under the Declaratory Judgment Act in the lower courts, so the court concluded that they have waived these claims now.

As far as standing under the JobsOhio Act itself, Justice French reasoned: “R.C. 187.09 … unambiguously provides that with the exception of claims within the original jurisdiction of this court or a court of appeals, any constitutional challenge to the JobsOhio legislation must lie in the Franklin County Court of Common Pleas and must be brought within 90 days after September 29, 2011[, the section’s effective date]. … The fact that R.C. 187.09 is silent as to who has standing to maintain a constitutional challenge to the legislation does not render the statute ambiguous. Nor will we read the statutory silence as clearly expressing an intention to abrogate the common-law requirements for standing. … Accordingly, we reject appellants’ argument that R.C. 187.09(B) grants them standing to challenge the JobsOhio Act.”

“Appellants stress that they were the only litigants to file a lawsuit within the 90-day time frame set by R.C. 187.09(B),” she continued. “Thus, they argue, if this court does not grant appellants standing, no one will ever be able to challenge JobsOhio. Appellants are mistaken. Both R.C. 187.09(C) and (D) provide extended statutes of limitations for challenges to JobsOhio. R.C. 187.09(C) provides that ‘any claim asserting that any action taken by JobsOhio violates any provision of the Ohio Constitution shall be brought … within sixty days after the action is taken.’ And R.C. 187.09(D) allows aggrieved parties to bring an original action in this court, without any time limitation.”

Noting that the constitutionality of the 90-day time limit was not an issue before the court in this case, Justice French added: “Additionally, to the extent that the 90-day time limit in R.C. 187.09(B) is unconstitutional, as appellants have suggested, a person with standing could still sue and challenge the time limitation as part of that suit. In short, appellants are not the last line of defense against JobsOhio, despite the dire picture they paint.”

Joining the majority were Chief Justice Maureen O’Connor, Justice Judith Ann Lanzinger, and Ninth District Court of Appeals Judge Beth Whitmore, who served in place of Justice Terrence O’Donnell, who recused.  Justice Sharon L. Kennedy concurred only in the judgment of the court.

Justices Paul E. Pfeifer and William M. O’Neill each dissented in separate opinions.

Justice Kennedy concurred, but wrote separately to address public-policy concerns. She does not agree that R.C. 187.09(C) and (D) extend the time for challenges to JobsOhio beyond the provision in division (B).

“R.C. 187.09(B) sets forth a time limitation on challenging the constitutionality of the creation of JobsOhio, while division (C) sets forth a time limitation on challenging the constitutionality of an action by JobsOhio,” Justice Kennedy wrote. In addition, “[t]he majority declares that an individual with proper standing could challenge the constitutionality of the 90-day time limitation in R.C. 187.09(B). But who could meet the justiciability requirement, because cases filed in a common pleas court require a concrete injury?”

In his dissent, Justice Pfeifer wrote that the court has again declined to address the constitutionality of the JobsOhio legislation. The appellants in this case do have standing under the public-rights doctrine, he contended. He cited State ex rel. Ohio Academy of Trial Lawyers v. Sheward, which reads:

Where the object of an action in mandamus and/or prohibition is to procure the enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that the relator is an Ohio citizen and, as such, interested in the execution of the laws of this state.

“That statement from Sheward is about standing in general, and in no way limits public-right standing to mandamus or prohibition actions,” Justice Pfeifer reasoned. “The object of the action is the essential element of public-right standing, not the type of suit used to bring the action.”

“The issues the appellants raise concern the structure of government rather than individual rights,” Justice Pfeifer continued. “The fact that those issues do not lead to an injury to an individual should not prevent this court from ensuring that the principles and requirements of those constitutional provisions are maintained. By doing so, we implicitly recognize the standing of our founders. This court bears a responsibility to today’s citizens and to the framers to answer the questions the appellants pose.” 

“We … should not compound past errors in judgment by making another momentous error and limiting Ohio citizens’ access to our court to question the constitutionality of legislation establishing the state’s direct involvement into the finances of private corporations. It is a limitation that will live far beyond this present controversy. This decision will be the lodestar opinion offered as the reason to block judicial review of constitutionally questionable legislation for decades to come.”

Justice O’Neill joined Justice Pfeifer’s dissent and also wrote separately.

“The risks presented by the court’s failure to act today are obvious, preventable, and unnecessary,” Justice O’Neill wrote. “The governor and the Ohio General Assembly may very well be right here. Maybe it is permissible to permit a private entity to spend hundreds of millions of taxpayer dollars without the annoyance of public audits and the state auditor asking an occasional question. Maybe this new-era form of governmental accountability does not violate Ohio’s Constitution. But unless we examine the issue, the people of Ohio will never have an answer to that question. It is simply shameful that the court has refused to do its job.”

2012-1272. ProgressOhio.org, Inc. v. JobsOhio, Slip Opinion No. 2014-Ohio-2382.

View oral argument video of this case.

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