Five Republican Justices on the Ohio Supreme Court just did Governor John Kasich a huge political favor.

The Ohio Supreme Court threw out a lawsuit challenging the constitutionality of JobsOhio on a legal technicality.

You can read the whole opinion here:, Inc. v. JobsOhio, Slip Opinion No. 2014-Ohio-2382.

There is little doubt, in our view, that had a court been permitted to review the merits of the claims that JobsOhio violates the Ohio Constitution, the court would have ruled the centerpiece of the Kasich Administration unconstitutional.  We won’t get into why here; just trust us, or read this excellent article from the Case Western Law Review.

The Ohio Supreme Court ruled that the parties who challeneged the constitutionality of JobsOhio, including our friends at ProgressOhio, did not have “standing” to challenge the JobsOhio Act.

Standing is a legal concept which provides that a person who seeks to bring a lawsuit must have a direct, personal stake in the outcome of a case.  In most instances, that means that the person has suffered a tangible harm; just being a taxpayer is almost always insufficient.

ProgressOhio had argued, among other reasons that they had standing under the “public-right doctrine.”  This is an exception to the general standing rule which occasionally permits claims in cases of “great importance and interest to the public.”  The court rejected this argument, suggesting – “amazingly,” in the opinion of one veteran supreme court attorney – that this case did not present the type of “rare and extraordinary public-interest issue” which could make the doctrine applicable.

The bottom line: even though JobsOhio is likely unconstitutional, nobody in Ohio is permitted to bring a lawsuit which could bring this issue before the court.

The Republicans in the majority suggested that some other people could possible bring a challenge to JobsOhio, but everyone knows that those challenges would face the same standing problem.   Don’t believe us.  Justice Pfeiffer, a Republican, deserves major credit for calling out the majority on the implications of this decision.   “Today, this court ends all doubt about when it will determine the constitutionality of the JobsOhio legislation, essentially responding, ‘Not ever.’ Not here. Not now. Not ever.”

He wrote:

Today, this court ensures that no court will ever address the question of the constitutionality of the JobsOhio legislation. . . . Ohioans will never know whether their government is violating the constitution. Apparently, they do not deserve to know.

In case anyone missed the point:

Across our state, in every county there is a courthouse; many of them are historic buildings that sit in the center of town and are the center of civic life. In those courthouses are dedicated staff and judges who have sworn to “administer justice without respect to persons,” R.C. 3.23; there, no lobbyists, no connections, no special relationships are necessary before a citizen can be heard. Today, we slam the doors on all those courthouses, denying Ohioans the opportunity to discover whether their government has been true to the Constitution.


  • stryx

    And a special shout out to Justice O’Neill for his concurring dissent:

    Hundreds of millions of dollars in public funds are being funneled into a dark hole to be disbursed without public scrutiny, and the highest court in the land is looking the other way. The Supreme Court of Ohio is the last house on the street, and passing on this case is an abdication of our duty as protectors of the Constitution. The risks presented by the court’s failure to act today are obvious, preventable, and unnecessary. They are obvious, because it is alleged that hundreds of millions of taxpayer dollars are being spent in direct violation of the Ohio Constitution. They are preventable, because as Justice Pfeifer correctly observes, the legislative scheme implemented does not foreclose a remedy—it simply means that any remedy will be messy. And ultimately, those risks are unnecessary. The governor and the Ohio General Assembly may very well be right here. Maybe it is permissible to permit a private entity to spend hundreds of millions of taxpayer dollars without the annoyance of public audits and the state auditor asking an occasional question. Maybe this new-era form of governmental accountability does not violate Ohio’s Constitution. But unless we examine the issue, the people of Ohio will never have an answer to that question. It is simply shameful that the court has refused to do its job.

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