Jobs Ohio Update: Ohio Supreme Court
by Victoria E. Ullmann
The JobsOhio litigation, which has been going on since 2011, reached an important stage when the Supreme Court allowed oral arguments this week. The litigation is not yet near completion however since this stage of the case concerns only whether or not the plaintiffs have standing to sue over this issue at all.
One thing that lawyers try to do is to view things from the perspective of the Court to be a better position to convince them to decide favorably. The Supreme Court’s view of the argument Wednesday has been formed not only in the briefs and argument before them now, but also by the two other JobsOhio cases that have been before them on procedural matters. In the first case, ProgressOhio v. Kasich, the Court struck down the language in the in R.C. 187.09 that purported to grant the Supreme Court jurisdiction to hear a declaratory judgment action immediately. As the Supreme Court does not have original jurisdiction to hear a declaratory judgment action, they found the case had to go the Common Pleas Court of Franklin County. Justice Pfeifer dissented and wanted to hear the case immediately because it was so important and involved legal issues that did not require discovery.
The second case was brought by JobsOhio as a mandamus action directly in the Supreme Court. They were trying to get a decision because no one would buy their bonds. ProgressOhio, Skindell and Murray intervened asking the court to dismiss the case because it was a declaratory judgment action. The court dismissed for that reason.
In most cases, an individual bringing a lawsuit has to have suffered some form of injury for which they are seeking redress. But Ohio has for almost 200 years recognized that in some rare circumstances, when the legal issue involved is vital, no one has to wait until damage occurs to bring the litigation. This is referred to as public interest standing. Who the plaintiff is, is in fact irrelevant in the case because anyone bringing the case is merely a stand in for the entire population of the state. This form of standing is allowed because a judicial resolution is required as soon as possible for the good of the entire state.
The reason this case has been so excruciating, is that this principle has been under particular attack since the Ohio Supreme Court struck down an expansive tort law reform package in the 1990’s in State ex rel. Ohio Academy of Trial Lawyers v. Sheward. This was a mandamus and prohibition action brought directly in the Supreme Court. (“writ case”) Although the Court specifically held that nothing in the case was intended to change public interest standing law, the state has been arguing in many cases for the past 20 years that the case holds that public interest standing can only exist in a writ case. Since that time, state defendants have convinced a variety of courts, primarily the 10th District Court of Appeals, to accept an improper and unsupported interpretation of Trial Lawyers which significantly curtailed the use of public interest standing by litigants. This has been the issue that has stymied this case all this time.
It is important not to confuse public interest standing with taxpayer standing, which is a very specific form in Ohio that has no relevance to this case. That can be used only if someone pays a tax into a specific designated fund and is challenging the management of that fund. Marc Dann was able to use that form to challenge the BWC on Coingate issues since he was an employer that paid BWC premiums. It has no relevance to programs such as JobsOhio.
The Tenth District found, at last, that public right standing can exist in a declaratory judgment action. They found against plaintiffs because they determined this case was not a sufficiently important issue to grant public interest standing.
Many lawsuits require the attorneys to educate the Court because they are new or deal with uncommon issues. In those cases oral argument is vitally important. However, all the justices that have been on the Supreme Court for any period of time likely have a firm concept of what is required to meet the standard for public interest standing. The Chief Justice as well as Justices Lanzinger, O’Neill and Pfiefer likely formed their opinion on this long ago. Justice French has come recently from the 10th District and would lean toward affirming Judge Tyack’s opinion. Justice Kennedy has had little opportunity to deal with this subject and would likely be open. The visiting judge is a wild card.
In 2011 the Court resoundingly reaffirmed public standing, but it regarded a much different type of case so that is not firm precedent for this case. During oral argument, several Justices made a variety of very favorable comments towards granting standing. O’Connor, Pfeifer and O’Neil all indicated that they found that the 90 day statute of limitations for constitutional claims in R.C. 187 presents an insurmountable wall to constitutional challenge which would violate separation of powers. That is three likely votes in favor of standing.
I did a great deal of work on this case and have always considered it would only be lost if a major mistake was made. Unfortunately for both sides, the oral argument in this cases saw mistakes were made on both sides.
Maurice Thompson from the right wing 1851 Center presented for the appellants. Throughout his brief and at oral argument his statement appeared to mix the concepts of public interest and taxpayer standing. As noted above, these are different concepts entirely. Under questioning by the Chief Justice, Thompson said they are the same thing. In my opinion, this is a mistake, however, the justices know the difference so it may not result in any sort of outright loss.
Another potential problem for appellants arose when Justice O’Neil repeatedly asked how many people were needed as plaintiffs to bring one of these cases. I did not hear Thompson answer this question, but the appropriate answer is one. It is important to have answers for all the questions.
Probably the safest vote going into the oral argument was Justice Pfeifer. He wanted to decide the case on the merits in 2011. He asked Thompson what I perceived to be a trick question. Justice Pfeifer said he has not really thought much about the merits of the case so would Thompson illuminate for him whether the case requires discovery to be determined on the merits. Thompson stated that the case required discovery. This is also wrong. The merits of the case can be determined solely on issues of law. This is generally the case for a grant of great public interest standing. Further, Justice Pfeifer himself stated in ProgressOhio v. Kasich that the case obviously needed no discovery so it could be decided on the merits right away.
On the state/JobsOhio side, they spent most of their time arguing that appellants did not have standing because this was not a writ case. Because the court of appeals found it did not have to be a writ case, the state should be required to file a cross appeal to argue that. The court can overlook that kind of technical issue, but that may be an epic fail for the state. Justice Pfeifer had a problem with that since he pointed out that they had not appealed that issue. That may kill that argument for them and it should.
I will call this one for ProgressOhio, but the reader should be aware that I do have a bit of a conflict of interest since I am the one that created the case in the first place and have always felt there was public interest standing to litigate this case.
Victoria E. Ullmann represented ProgressOhio in ProgressOhio v. Kasich, as intervenor is JobsOhio v. Goodman, and in ProgressOhio v. JobsOhio in common pleas and the court of appeals. She also represented Plunderbund in Plunderbund v. Mandel. She currently represents Plunderbund in Plunderbund v. Born.