The Ohio Supreme Court today rejected a group’s challenge to Gov. Mike DeWine’s “Vax-a-Million” lottery and his pandemic orders, finding the organization failed to meet the requirements to sue in the Supreme Court.

A Supreme Court majority ruled Ohio Stands Up! lacked standing to request that the Court prohibit last spring’s series of $1 million giveaways or compel the governor to follow the Ohio Constitution. In a per curiam opinion, the Court ruled the organization failed to prove how it or any of its unidentified members were personally harmed by the state’s actions.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the opinion. Justice R. Patrick DeWine did not participate in the case.

In a concurring opinion, Justice Sharon L. Kennedy stated that the case “raises weighty constitutional issues that demand resolutions,” but that the Supreme Court was the wrong forum in which to assert them. She wrote that the relief Ohio Stands Up! seeks are a declaratory judgment that the DeWine administration violated the law and an injunction against future violations, both of which can be sought from a common pleas court.

Group Opposes Lottery, Vaccines, Closures
The Court identified Ohio Stands Up! as an Ohio corporation. In a 2021 statement, the organization stated it is a non-profit 501(C)(4) social welfare group, and described itself as a “community-based legal advocacy organization comprised of Godfearing, patriotic volunteers from across Ohio.”

Ohio Stands Up! filed for writs of prohibition and mandamus in May 2021, days after Gov. DeWine announced the Vax-a-Million lottery, which entailed spending more than $5 million to encourage Ohio residents to receive COVID-19 vaccinations. Ohio Stands Up! contended the program was unconstitutional because the giveaway of cash prizes and college scholarships came from public treasury funds without the General Assembly's authorization.

The group argued the program was discriminatory because only those who were willing to “assume the risk” of the vaccine were eligible to win, and the governor violated several laws, including “the Nuremburg Code” by encouraging Ohio children to undergo “harmful genetic experimentation.”

The group asked the Court to issue a writ of prohibition to prevent the state from spending money on the lottery, requiring vaccines, imposing mask mandates, or ordering business closures, and to ensure that the governor obeys all federal laws, including the Americans with Disabilities Act.

The requested writ of mandamus sought to compel the governor to perform his duty to seek General Assembly approval of expenditures under the appropriation-of-state-funds sections of Article II of the Ohio Constitution.

The state asked the Court to dismiss  the case, arguing Ohio Stands Up! lacked standing to bring the case, and asserting the group failed to establish it was entitled to the writs.

Supreme Court Analyzed Claim Requirements
The opinion noted that before the Court could consider the merits of the claim, Ohio Stands Up! had to establish it had standing to sue. The group argued it had standing under four different theories, but the Court rejected all of them.

The group claimed it met the requirements for “traditional standing,” in which a party must show it suffered an injury. The injury could be traced to the state’s “unlawful conduct,” it said, and the Court could grant relief that would remedy the situation.

For standing to request a writ of prohibition, Ohio Stands Up! had to prove it suffered an injury to “a legally protected interest,” the Court wrote, and for a writ of mandamus, the group must show it either “directly benefited” or was injured by “a judgment in the case.”

“It is difficult to see how Ohio Stands Up!, a corporation, could be injured by discrimination based on vaccination status, or how it is directly harmed by the administration of an allegedly harmful vaccine to children,” the opinion stated.

The group claimed it also met the “public-right doctrine” exception from the personal-injury requirement of traditional standing. The Court said to invoke the “public-right” exception, the group must raise “rare and extraordinary” issues that are of “great importance and interest to the public.” The Court ruled the legal issues raised were not the type of rare and extraordinary issues required to meet public-interest standing.

The group’s claim of “taxpayer standing” was denied because the organization had to prove it had some “special interest in the public funds at issue.” Because Ohio Stands Up! objected to the use general state funds, it did not assert a special interest in the funds, the opinion stated.

The final claim, that the group had “associational standing” to sue on behalf of members of the association, was denied because the organization never alleged that any of its members had standing to sue, the opinion stated.

Because the group failed to establish standing, the Court dismissed the case.

Concurrence Found Action Not Appropriate for Supreme Court
In her concurring opinion, Justice Kennedy wrote that before the Court could consider whether Ohio Stands Up! had standing to sue, it needed to determine whether the Court had jurisdiction to hear the case. She stated that the group had not sought relief available from writs of prohibition and mandamus but in reality asked for a declaratory judgment and a prohibitory injunction.

The concurrence explained that the Court has jurisdiction to issue a writ of prohibition to prevent the “exercise of judicial or quasi-judicial power.” The group argued that the governor and his administration seek to exercise “administrative quasi-judicial power” by expending funds; subjecting children to vaccination; and imposing mask mandates and business closures. But the group did not show that that the governor or his budget director acted as judicial officers or plan to conduct proceedings resembling a “judicial trial or a quasi-judicial proceeding,” the concurrence stated.

The purpose of a writ of mandamus is to compel official action, Justice Kennedy noted, but the essence of the request from Ohio Stands Up! is to prohibit the governor and his budget director from acting. The group also asked the Court to order the governor to abide by state and federal law in the future, the concurrence noted, pointing out that the Court has previously ruled it does not issue writs of mandamus to “compel the general observance of laws in the future.”

The “real objects” of Ohio Stands Up! are to declare that the administration is violating the law and to prevent the governor from continuing the programs and policies. That relief can be obtained through a declaratory judgment coupled with a prohibitory injunction, which the Court lacks the jurisdiction to grant, the concurrence stated.

“To be clear, I express no opinion regarding the weighty constitutional issues that Ohio Stands Up! raises,” Justice Kennedy wrote. “My only point is that this court lacks the judicial power to grant the remedy that Ohio Stands Up! seeks, and for this reason, I concur in the court’s judgment today dismissing the complaint.”

2021-0671. State ex rel. Ohio Stands Up! v. DeWine, Slip Opinion No. 2021-Ohio-4382.

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