HB 1, which created RobsOhio, was railroaded through the legislature so quickly (36 days from introduction to being signed into law.) it made the legislature’s consideration of SB 5ook downright deliberative in comparison. 

After it passed the Ohio House, Speaker Batchelder admitted that he had deep concerns that the bill he just passed for the Governor was unconstitutional.  The Senate never really addressed these concerns, but instead just consented to the changes the Senate made.

One of the provisions of HB 1 (Section 6) was a mandate that any legal challenge to JobsOhio constitutionality could only be heard in the Ohio Supreme Court and that any suit filed in any other court in Ohio challenging the constitutionality of HB 1 had to be dismissed for lack of jurisdiction. 

ProgressOhio filed suit challenging HB 1 on the very constitutional issues raised by Speaker Batchelder.  Specifically, the plan that JobsOhio would obtain an equitable stake in the companies it assists violates Art. VIII, Sec. 4 of the Ohio Constitution, as I asserted in my testimony to the House Finance Committee (I would have testified in front of the House State Government Committee, but the Chairman… some guy named Mecklenborg, held just one hearing with no advance notice before having his committee approve the bill.)  Pursuant to the bill’s provision, ProgressOhio and the other plaintiffs, such as Democratic State Representative Dennis Murray (D-Sandusky), filed suit in the Ohio Supreme Court, but while also challenging the constitutionality of Section 6 of the bill which mandated that the suit had to be filed there.

During the pendency of this suit, the Kasich Administration had its Republican allies include several provisions into the budget “amending” HB 1 to address some, but not all, of the constitutional challenges to RobsOhio.  Those changes mostly dealt with stripping Governor Kasich of his powers over JobsOhio… turning it into an even more secretive, less publicly accountable entity in the process.

In a 6-1 decision yesterday, the Ohio Supreme Court agreed with ProgressOhio and ruled that Section 6 of HB 1 was unconstitutional as the legislature has no authority under the Ohio Constitution to confer on the Court exclusive jurisdiction on specific acts of legislature.  In other words:

Forum Shopping Nazi

The nearly all-GOP Ohio Supreme Court saw what the the legislature was doing.  They were engaged in classic forum shopping in the hope that the Court would be the friendliest forum to hear any challenge on the constitutionality of RobsOhio (HB 1).  Seeing that, they said we want no part of that, thanks, and ruled that any challenge to the constitutionality of RobsOhio must go through the regular legal process instead.

That means that in the first month of his Administration, Kasich appointed (or tried to appoint) two individuals who were ineligible to serve in his Cabinet under the Ohio Constitution and forced the legislature to pass a signature piece of legislation for the Administration that was patently unconstitutional as determined by the very court the Administration unconstitutionally insisted should hear any legal challenges on the bill.

The only worse than forum shopping is then losing in the forum of your choosing.

As ProgressOhio points out, the practical effect is that it means that it must now refile the case in a common pleas court and restart the litigation process all over again:

"The Senate had to do clean-up work in the budget to fix part of the constitutional mess created in HB 1," said Rep. Murray.  "The Ohio Supreme Court just cleared up another piece of this constitutionally sloppy piece of legislation. Hiding the Department of Development from the taxpayers by privatizing it is still a bad idea, but at least it is getting closer to complying with the Constitution."

The constitutional challenge can now be refiled at the trial court to address the remaining issues.  Chief among these is the prohibition against the state investing public dollars in private corporations.  "Ohio went down this path before with disasterous investments in canals and railroads during the middle part of the 19th Century.  As a result, the voters decided to prohibit the state from making the mistake the Gov. Kasich proposes to repeat," said Rep. Murray.

"The Ohio Constitution is clear; the state cannot invest an equity stake in a private institution. It is our belief that the case will eventually be decided in our favor on every count, no matter what the venue," said Rep. Murray.  "We will continue to challenge the unconstitutional structure of JobsOhio, an entity which has already cost 211 Ohioans their jobs. I will meet with my fellow plaintiffs in the coming days to discuss refilling the lawsuit."

Here’s hoping State Representative Murray, State Senator Michael Skindell (D-Lakewood), and ProgressOhio keeps up the fight.  I believe we need to have judicial review of this notion that JobsOhio can obtain equitable stakes in private companies because it would seem that would violate Art. VIII, Sec. 4 of the Ohio Constitution.  It’s an important constitutional question that deserves an answer, especially since the Republican-led General Assembly showed little to no interest in exploring it as they rushed HB 1 to enactment.

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  • herc

    I loved the original headline the Dispatch had for this yesterday, “Supreme Court tosses out JobsOhio suit”. I love how they wanted to suggest that the ones that filed the lawsuit “lost” but that’s not the case at all. They’ve added basically the same story to the website (but yesterday’s is still there), but with a very different headline “Supreme Court redirects JobsOhio suit”, which is of course much more accurate.

  • Anonymous

    Thanks for explaining this in an understandable way Modern.  It now makes sense.

    And let’s not forget for future reference the name of the dissenting judge…Paul Pfeifer.

  • Sorry TakimaBears. Most of PB’s staff was at the Stand Up For Ohio festival today. We do moderate comments, so someone has to hit “approve”. We typically do this pretty often . Today was an exception.

    I hope you’ll continue reading and commenting!

    You can always email us at crew@plunderbund.com if you have any questions or concerns or comments .

    BTW: I agree that Diebold’s connections to Republicans is scary – even more so now that Kasich has given them a bunch of cash.

  • Anonymous

    There’s that myth again. Diebold did little to help Dubya carry  Ohio in 2004. The name you’re looking for is “Blackwell.” By underallocating machines in urban areas and turning a blind eye to possible counting hanky-panky in southwestern Ohio, HE carried the state for Bush. The myth persists that Diebold somehow flipped electronic vote totals (the favor spooky bedtime story is the one about the secret war room in Chattanooga with Karl Rove conducting the fraud). Only problem: very few voters voted on electronic machines in Ohio in 2004. Not saying we shouldn’t be vigilant but honestly, I think sometimes we look past the obvious to focus on something more arcane and glamour-sounding. If we get the HB 194 repeal on the ballot, as desperate as the Republicans are to keep Obama from being re-elected and the replace Sherrod Brown with The Empty Suit, I would not be surprised if they resort to underallocating machines again. It’s the simplest and most straighforward thing to do without stepping into obviously illegal areas and it can create plenty of chaos and vote depression exactly where they need it.

  • Anonymous

    That’s weird. Pfeifer is considered both the most rational member of the court and a sort of honorary Democrat. What was his reasoning, do you know?

  • my reply Anastasjoy: Planes Fall From The Sky 

    which is not to discount the mundanity of deliberate mis-allocation of voting machines,  etc.

  • Fotogirlcb2002

    Well…. how about we ask for new “talks” about HB1…….
    How many of them do you suppose would show up?
    Exactly.. none!

  • Anonymous

    Pfeifer’s response:

    “This case challenges the constitutionality of legislation that makes
    significant changes to the organizational structure of state government
    but does not involve a complex factual scenario that would benefit from
    the development of a record in the trial court,” he wrote. “We would be
    serving the interests of the state and of the judicial economy by
    addressing petitioners’ claims now.”

  • Victoria_Ullmann

    The Supreme Court will on rare occasion take a special case like this for the reasons Pfeiffer states and it does save plaintiff’s money on these challenges so that would be a benefit.  However, in this case, the GA was actually trying to push the SC around so I am surprised at the dissent, but he says that is his pet issue, so he’s going to make his statements when its likely to been seen by the public.  And it was .   This is one of the sections from JobsOhio that comes from ALEC so haha.

  • Victoria_Ullmann

    I know as the mere lawyer who is doing much of the work on this suit, without an organizational name or elected position I will not get mentioned much, but since you guys know me a mention would be nice.   This litigation would not exist –at least in its current form without me.

  • Modern Esquire

    Sorry, Victoria, we didn’t know.

  • Modern Esquire

    Pfeiffer didn’t think it was ok.  He dissented because he wanted the court to rule on the constitutionality of the rest of the legislation as well.  In other words, he was likely ready to urge the court to rule the whole thing unconstitutional and didn’t see the reason to wait.

  • Anonymous

    I love the dissent. It was from Pfeifer.  He wanted to declare the entire thing unconstitutional immediately.

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