In “The Candidate,” the classic 1972 Michael Ritchie movie about politics, Bill McKay, played by Robert Redford, has just won a come from behind victory for the U.S. Senate. He then famously turns to his campaign manager and asks, “What do we do now?”
Kasich must be asking the same thing after the Supreme Court’s decision this morning on JobsOhio.
The full text of the case is available at State ex rel. JobsOhio v. Goodman, Slip Opinion No. 2012-Ohio-4425.
JobsOhio filed a mandamus action in the Ohio Supreme Court asking the court to find that legislation creating JobsOhio was constitutional compelling Ohio Department of Commerce Director David Goodman to execute an agreement to transfer the state’s liquor business to JobsOhio.
The problem arose because the General Assembly passed a bill to transfer to JobsOhio from Commerce all or a portion of the alcohol-distribution system. JobsOhio the Department of Commerce negotiated a series of agreements to make this happen. The problem arose because Goodman refused to execute the franchise-and-transfer agreement. In a letter, he explained that although he supports JobsOhio he believed that his oath of office to uphold the Ohio Constitution precludes him from executing the agreements.
This act of courage – putting the Constitution before partisan politics – earned Goodman a coveted KUDOS for Plunderbund. (We are sure he has a framed copy of the Post in his office!)
We were treated to the spectacle of JobsOhio suing one of Kasich’s Cabinet Members. You can’t make this up. Kasich was hoping that the Supreme Court quickly would rule in favor of JobsOhio. Many speculated that Kasich orchestrated this procedural move to avoid a separate lawsuit challenging the constitutionality of JobsOhio by ProgressOhio.
The procedural hook that Kasich pursued is a mandamus action, which is a legal action to compel a government official to take an action the official is required by law do to. This is the type of action filed, for example, to compel a government official to produce public records.
Unfortunately for Kasich, the Supreme Court refused to play along. The court did something none of the parties asked it to do: sua sponte dismiss this case without reaching the merits. The court noted that the “real object sought is a declaratory judgment” that JobsOhio was constitutional. The court said: “Although JobsOhio’s complaint is couched in terms of compelling ODC Director Goodman to comply with his affirmative duty . . . to execute the franchise-and-transfer agreement, it actually seeks an expedited ruling from this court declaring [the bills creating JobsOhio constitutional, so as to preclude any further challenges.”
The court said that JobsOhio should file a declaratory-judgment action in the common pleas court. Why doesn’t Kasich want to do this? Because the Common Pleas Court might take months to issue a decision. Then the case would be appealed to the Court of Appeals. Then the decision of the Court of Appeals could be appealed to the Ohio Supreme Court.
Some additional Plunderbund Kudos to the team at ProgressOhio, who filed a Motion to Dismiss suggesting that the Ohio Supreme Court do exactly what it did. They were right about this, and will be shown to be right about the underlying constitutionality of JobsOhio if (when) the court ever takes up the case on the merits.
Two big possible downsides for Kasich in this approach:
First, there is a chance he would run into a Democratic judge in the Court of Common Pleas or the Court of Appeals. We are sure Kasich thought that the Republican dominated Ohio Supreme Court was the most friendly forum.
Second, appeals take a lot of time, and likely Kasich would not receive a decision from Ohio Supreme Court until after the end of his first term.
Let’s be clear: this is a big loss for Kasich personally. His signature achievement is stalled. The papers are clear on this. The Plain Dealer’s headline is, “Ohio Supreme Court dismisses Gov. John Kasich’s JobsOhio suit.” The Kasich Paper of Record, the Dispatch, even leads with: “JobsOhio, the privatized economic development centerpiece of the administration of Gov. John Kasich, suffered a setback this morning . . .”
An appellate attorney we contacted put it simply, “Kasich doesn’t have a lot of good legal options.”
The attorney went on to suggest one radical approach: “Kasich could always fire Goodman and replace him with someone who is not troubled by the likely unconstitutionality of JobsOhio. That’s what Nixon did in Watergate when the Attorney General wouldn’t fire the special prosecutor – so there IS a precedent. Of course, that didn’t work out so good for Nixon in the end. . .”