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:
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.