On Tuesday, the Ohio Supreme Court ruled against the opponents in the case against JobsOhio, a private economic development organization put in place with the support of the Kasich administration and funded by the state’s liquor profits.ojc_web

Progress Ohio, Senator Michael Skindell, and Representative Dennis Murray brought the suit to challenge the use of public dollars to fund the economic development efforts of a private organization without transparency.  The lower courts ruled against the opponents on the grounds that they lacked standing.

The Supreme Court sided with the the lower courts in a 5-2 decision.  The majority maintained,

“If and when an injured party seeks to challenge JobsOhio, we may entertain such a case.  But those parties are not before us today.  Appellants lack standing to bring this suit, and they may pursue it no further.”

The 1851 Center for Constitutional Law argued before the Supreme Court that taxpayers do have standing to challenge the constitutionality of corporate welfare.  Please see 1851 Center’s press release from November 2013 found HERE.  In that release, the 1851 Center wrote,

  • “The Ohio Constitution demands that citizens and taxpayers maintain standing to enforce limits on tax, spending, and indebtedness legislation.
  • The lower courts in this case erred in relying on federal standing cases, which are centered on Article III of the federal constitution, because the language of the Ohio Constitution deliberately rejects such barriers to standing in Ohio, and contains no jurisdictional prohibition on taxpayers and citizens bringing public interest actions.
  • Enforcing well-defined constitutional limits on state spending, indebtedness, and governmental conferral of special corporate privilege is “of great importance and interest to the public.”
  • Ohioans’ stake in enforcement of their constitution is sufficiently personal to maintain standing to enforce constitutional limits on state government’s spending, indebtedness, and provision of special corporate privileges.
  • If Ohioans are required to have a “personal stake” in such actions beyond their role as citizens and taxpayers, as the lower courts require in this case, then no Ohioan will have the capacity to enforce these general spending, debt and corporate welfare limits, and Courts will have rendered those provisions effectively unenforceable.”

Maurice Thompson, Executive Director of the 1851 Center, has provided the following statement regarding the Ohio Supreme Court’s ruling:

“We certainly concur with the entirety of Justice Pfeiffer’s well-reasoned, logical, and passionate dissent, which points out the lack of substance in the majority’s decision, as well as its hypocrisy.  We also concur with Justice O’Neill’s observations that (1) “it is simply shameful that this court has refused to do its job;” (2) “this ruling brings the triumph of form over substance to a whole new level,” and (3) “what we are doing here is simply wrong.”

Today, a majority holds that no Ohioan may enforce the Ohio Constitution’s structural limits on government in Court.  The “personal stake” test that the Court has fashioned today is not in the Ohio Constitution, but will ensure what is in the Ohio Constitution – – a prohibition on spending, indebtedness, and cronyism arrangements – –  cannot be enforced.  (Emphasis intended.)

Who has a personal stake when your state government flagrantly ignores its founding document?  Not you.  Not me.  Not anyone.

Nor is the majority’s vague requirement of a “rare and extraordinary case” actually in the Constitution.  What the Court has done is cherry-picked its own past words, and given them precedence over the words of the Constitution that Ohioans have actually voted to ratify.

Meanwhile, the Court’s distinctions between “mandamus” and “declaratory relief” are a sham – – a distinction without a difference – – for a Court that can regularly be quoted as guaranteeing it will not elevate form over substance.  Likewise, the Court’s brave new interpretation of the word “justiciability” is not only unprecedented, but will haunt Ohioans until it is abandoned.  Finally, the majority is forced to entirely miscast and ignore the Appellants’ argument to look the other way (the Court is wildly mistaken when it suggests that ProgressOhio did not argue that this matter presented rare and extraordinary circumstances).

One may read this decision, whether alongside others over the past year or in isolation, and be left with the creeping feeling that the politicians currently seated on Ohio’s Supreme Court are either incompetent or corrupted by pressures that we cannot fully understand.

More holistically, lawyers who practice before this Court are left to wonder whether their diligent preparation of briefs and arguments is simply a waste of their time:  having the law and facts on one’s side, and the argument to prove it, simply may not be enough to impress a court where extra-legal considerations may weigh more heavily.

Justices French and Kennedy are on the ballot in 2014.  Justice O’Connor is on in 2016, and made the special appointment of the fourth judge that forms the majority on this opinion.  This is one of the rare parts of the Ohio Constitution – – the opportunity to recall Justices – – that the politicians on the court cannot construe as null and void.

For each of these Justices, today’s ruling is no isolated example.  In the past year, each has ruled that government owns your children, and may take them from you when it disagrees with your medical decisions, and each has rubber-stamped the Governor’s unilateral administrative reform of Ohio health care policy through expansion of Medicaid spending.”

The Ohio Supreme Court’s slip opinion can be found HERE.