A Columbus attorney was able to clear one legal hurdle that previous challengers to the constitutionality of the state’s private JobsOhio development office could not, but she was derailed by another in a state appeals court.

The Tenth District Court of Appeals affirmed Tuesday the ruling of a magistrate that said Victoria Ullmann lacked legal standing to challenge the law. Ullmann, who filed an amicus curiae brief in a JobsOhio challenge heard by the Ohio Supreme Court last year, argued she had the right to sue the state as a citizen, taxpayer, business owner, business consultant, elector of the state, purchaser of liquor, and attorney.

In June 2014, the Ohio Supreme Court voted 5-2 to reject a challenge to the creation of JobsOhio by ProgressOhio.org, Sen. Michael Skindell and former State Rep. Dennis Murray. JobsOhio is a private entity formed to take on most of the role of granting state incentives to job-creating companies that was previously provided by the Ohio Department of Development.

In that decision, Justice Judith L. French wrote a proper party “may unquestionably contest the constitutionality of JobsOhio. As to that proper party, the courthouse doors remain open.”

Four months after the decision, Ullmann returned to the Tenth District, which had heard ProgressOhio’s appeal, to file a writ of mandamus. In her writ, she asked the court to not only declare the law creating JobsOhio unconstitutional, but also directing state officeholders to take action, including requiring Secretary of State John Husted to revoke its articles of incorporation and State Auditor David Yost to audit the organization.

The appellate court directed the case to a magistrate to hear Ullmann’s arguments for the right to sue and the state’s objections, which mirrored those in the previous case, contending Ullmann has not experienced an actual injury from JobsOhio that gives her the right to challenge its existence.

Ullmann’s argument picked up where ProgressOhio and the two lawmakers were closed off. The others were stopped by the type of case filed, and by conceding they had no personal stake in the outcome of the case, which is the notion of traditional standing that allows individuals to file lawsuits.

Writing for the appeals court, Judge Timothy S. Horton indicated that like ProgressOhio, Ullmann first argues she has a right to invoke the “public-right doctrine” to sue that Ohio courts recognize as an exception to traditional standing “when issues sought to be litigated are of great importance and interest to the public” that the person suing doesn’t have to be particularly involved in the matter. The Supreme Court told ProgressOhio it couldn’t use the doctrine because it filed a suit for a declaratory judgment, and the doctrine can’t be raised when seeking such an order. Ullmann, by contrast filed a writ of mandamus, and the state argued the writ “was merely a disguised action” to have the court issue a declaratory judgment. Judge Horton disagreed. He cited the Supreme Court’s 2007 State ex rel. Ohio Gen. Assembly v. Brunner decision, where the court found if the declaratory judgment wouldn’t fully provide the remedy the person suing sought, a writ of mandamus could be filed. Since Ullmann not only asked for the law to be declared unconstitutional, but also asked for state officeholders to take action, the writ does give her the right to challenge the law in court.

But using mandamus does not allow citizens to challenge every law perceived to be unconstitutional, Judge Horton noted. The person must also show the law has to be “rare and extraordinary,” he wrote, and the magistrate hearing the case explained that rare and extraordinary was defined by the Supreme Court in the 1999 State ex rel. Ohio Academy of Trial Lawyers v. Sheward case. Rare and extraordinary issues are those that threaten serious public injury. The magistrate ruled, and the appeals court agreed, that the JobsOhio law is not that type of law. Judge Horton noted the Tenth District made that same conclusion when ProgressOhio first challenged its ruling rejecting its standing claim, and the Supreme Court upheld that decision.

“(Ullmann) has not alleged anything in this new action different from earlier action to show that she has standing under the public rights doctrine,” Judge Horton wrote.

While the lawmakers and ProgessOhio did not make a traditional standing argument, Ullmann posed several arguments as a citizen, taxpayer, and business owner that she is being harmed by JobsOhio. She noted as an elector, she is being deprived of the benefits of the state constitution because JobsOhio is violating two provisions of it, and as a purchaser of liquor, she is harmed by JobsOhio’s use of the liquor profits because she is funding its work. The magistrate rejected the arguments writing that claims must be actual and concrete and not “abstract or suspected,” and that Ullmann is impacted no differently than any other Ohioan and does not have standing to sue.

Judges Susan Brown and William A. Klatt concurred in the decision.

State ex rel. Ullmann v. Husted, 2015-Ohio-3120
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2015/2015-Ohio-3120.pdf
Direct Appeal to: Tenth District Court of Appeals
Writ Denied
Date of Judgment Entry on Appeal: Aug. 4, 2015

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