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5-2 Ohio high court ruling keeps JobsOhio running in secret in election year

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Had its decision been to permit a trial to take place on whether Gov. John Kasich's secret job development group is constitutional, the campaign of the governor's Democratic challenger Ed FitzGerald may have been gifted with a new lease on its shaky life. But that was not the case Tuesday when the court, in a 5-2 ruling, rejected a challenge from progressive group ProgressOhio and two Democrats who challenged the constitutionality of JobsOhio, the governor's private, nonprofit economic development agency.

It was a key decision considering this is an election year for chief executive and both Kasich and FitzGerald had lots to lose or gain with the decision. Written by Justice Judith L. French, who Gov. Kasich appointed to the court, the decision held that ProgressOhio.org, state Sen. Michael Skindell of Lakewood and former state Rep. Dennis Murray do not have the legal right to pursue its claim in court. The court's position is that the plaintiffs lack a personal stake in the outcome of the case.

"We have long held that a party wishing to sue must have a direct, personal stake in the outcome of his or her case; ideological opposition to a program or legislative enactment is not enough," French wrote for the majority. "Applying that precedent here, we conclude that appellants have failed to show that they have any personal stake in the outcome of this litigation."

The suit was filed by ProgressOhio in 2011 and argues that the law that set up JobsOhio, a private entity pushed by Gov. Kasich following his election in 2010 that Republican lawmakers dutifully enacted, violates the Ohio Constitution. A lower court ruled the action by the plaintiffs did not have standing. The case never went to trial, so Ohio voters will never know whether JobsOhio, a group Kasich credits with creating jobs but his critics say has done little job creating, is indeed constitutional.

Back on Nov. 6, 2013, the court heard oral arguments Maurice Thompson, an attorney with the conservative 1851 Center for Constitutional Law, on the issue of standing on. ProgressOhio argued that citizens should be able to question the legality of their government's decisions and enforce the Constitution.

"The purpose of a constitution is to protect the politically weak from the politically powerful," Thompson said, wondering who has standing if these plaintiffs don't.

The act that created JobsOhio authorized the creation of a nonprofit corporation for "the purposes of promoting economic development, job creation, job retention, job training, and the recruitment of business" to Ohio. R.C. 187.01. An appropriation from the Department of Development initially funded and
established JobsOhio. Thereafter, JobsOhio was given the right to purchase the state’s liquor distribution and merchandising operations and to operate from revenues of the liquor enterprise.

The majority conclude that appellants have waived any claim to taxpayer standing by failing to raise the issue in the lower courts. The trial court made two rulings on the issue of taxpayer standing: (1) that appellants never asserted taxpayer standing in their complaint, and (2) that, regardless, appellants failed to qualify for taxpayer standing. Appellants did not appeal that holding, and they did not brief or argue the issue of taxpayer standing in the court of appeals. Instead, appellants’ assignments of error focused only on the public-right doctrine, legislative standing, and statutory standing under R.C. 187.09.

In his dissent, Justice Paul Pfeifer, a Republican who's views over the years often separate him from the majority, expressed similar concerns, erroneously concluding that today’s decision ensures that no court will ever address the
question of the constitutionality of the JobsOhio legislation. "Neither the state nor its counsel, nor the majority opinion has been able to conjure a realistic example of a person or entity that would have the requisite standing and inclination to bring a claim," he wrote. All parties in this case—including appellants—identified multiple persons and entities that could potentially bring a claim, he said, but "despite the dissent’s protestations to the contrary, we do not hold, and the parties do not suggest, that no person could ever have standing to challenge JobsOhio." A proper party—i.e., one with legal standing—may unquestionably contest the constitutionality of JobsOhio. Justice O'Neil, a Democrat, was the second dissenter in the case

The court concluded that appellants have no personal stake in the outcome of this litigation and therefore lack common-law standing to challenge the JobsOhio Act. The public-right doctrine, it said, "cannot save appellants, as it does not apply to actions brought in common pleas courts. Appellants’ alternative claims to statutory standing likewise fail. "If and when an injured party seeks to challenge JobsOhio, we may entertain such a case ... But those parties are not before us today. The trio of plaintiffs lack standing to bring this suit, and they may pursue it no further the court ruled.

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