Foes Of JobsOhio Make Case To Supreme Court

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The Kasich Administration's jobs creation board is challenged in the Ohio Supreme Court.(Photo: JobsOhio)
The Kasich Administration's jobs creation board is challenged in the Ohio Supreme Court.(Photo: JobsOhio)

The Ohio Supreme Court heard arguments on JobsOhio on Wednesday, but not on whether it’s a constitutional creation.

Instead the debate around who can file a lawsuit to settle the question of JobsOhio’s constitutionality.

Both sides got the question: “who has standing to sue in a case like this?” Chief Justice Maureen O’Connor asked it of Maurice Thompson from Progress Ohio, which filed the suit.

O’Connor: “Does every Ohioan have the right to stand where you are today?”
Thompson: “In certain cases, it’s imperative –“
O’Connor: “No. This case. This case. Had they gotten, done their filings within the 90 days.”
Thompson: “Yes, your honor. It’s imperative in certain cases, including this one, that any Ohioans in their capacity as a citizen or a taxpayer have the standing to enforce the Constitution.”

And Justice William O’Neill asked the question of state deputy solicitor Steven Carney.

Pfeifer: “Who has standing to challenge Progress Ohio – or, I’m sorry, JobsOhio? I keep getting my organizations mixed up. Who has standing today?”
Carney: “I believe that if they disagree with the transaction, liquor, private party people who deal with liquor who now deal with the new arrangement, or bondholders –“
Pfeifer: “Why? Why are they different?”
Carney: “Because they have a concrete interest in the transaction.”

Thompson said this law implicates public rights, not individual rights – and he says if no one has the standing to challenge laws, lawmakers are all powerful and can legislate at will.

But Carney and the JobsOhio side argued that Progress Ohio wants an unprecedented form of standing that would allow 11.5 million people to legally fight any state law.

“Their rule has no limits,” Carney argued. “It asks you to clear several constitutional hurdles, and also several precedential hurdles. They want you to throw away all that precedent, let everybody sue, as long as it’s a constitutional challenge. That’s their only limit.”

The JobsOhio side also argued that there’s no investment of public money here so there can’t be any taxpayer standing, because JobsOhio is a private non-profit corporation. That was just one of the several hints of possible future arguments about JobsOhio, such as about its transparency.

But those won’t happen unless the Supreme Court rules that Progress Ohio has standing and that the lawsuit can proceed.

Thompson said after the arguments that he feels that it will.

“I don’t exactly know which justices the votes will come from or exactly what they’ll say, but if they don’t want to take a black magic marker and redact half of the Ohio Constitution, then they have to rule in our favor.

“And I don’t think they want to do that. I think that they recognize that this body has a place in our state government, and that that place will be lost if Progress Ohio doesn’t have standing here.”

There’s no timeline for a ruling – though Thompson said he thinks his lawsuit against the state over Medicaid expansion will be decided before this one will. The issue of standing is key in several other cases, including the lawsuit over video lottery terminals at horseracing tracks that was filed by Progress Ohio and the conservative Ohio Roundtable.

The Ohio Roundtable was also part of this lawsuit, along with two Democratic lawmakers. All but one justice on the court are Republicans.

One of those Republicans, Justice Paul Pfeifer, said in court that this is a complicated case and that perhaps it should be tried in common pleas court – which is exactly what would happen if Progress Ohio prevails.

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