The Ohio Supreme Court this week shamefully and wrongly ducked a question about JobsOhio – Gov. John Kasich’s signature economic development program – that somebody needs to answer: whether, in dissenting Democratic Justice William O’Neill’s words, “hundreds of millions of taxpayer dollars are being spent in direct violation of the Ohio Constitution.”
What’s more, the high court’s 5-2 ruling spurned a precedent that strongly suggests JobsOhio’s challengers have the right not only to question JobsOhio’s legal foundation, but also the right to get those questions answered without being sent to yet another courtroom.
Quibbles over “standing” and “jurisdiction” are just that – quibbles. “Catch-22″ is a great novel. It can’t be a legal principle.
JobsOhio is a centerpiece of Kasich’s quest to kick-start what had been Ohio’s sluggish state economic development efforts. JobsOhio is a corporation authorized by the General Assembly. The profits of Ohio’s liquor monopoly, profits that constitute public funds, underpin JobsOhio. Hairsplitting aside, that means JobsOhio is an entity in which all Ohioans, through their legislature and governor, are investors.
In terms of Ohio’s government, JobsOhio is a new species. There’s nothing quite like it. So the fact that ideology or politics may prompt challenges to JobsOhio doesn’t mean those challengers deserve to be ignored. Without quite saying so, that’s what the Supreme Court’s majority hinted in its opinion, written by Justice Judith French, a Republican whom Kasich named to the court.
The kernel of the majority’s opinion was that the trio of plaintiffs — ProgressOhio.org, state Sen. Michael Skindell of Lakewood and former state Rep. Dennis Murray of Sandusky – lack “standing,” because they don’t have a personal stake in the outcome of a challenge to JobsOhio. The court majority also rejected another kind of standing, “public-right standing,” recognized in a 1999 decision: In seeking “the enforcement or protection of a public right,” someone going to court need only be “an Ohio citizen and, as such, interested in the execution of the laws of this state.”
In this week’s JobsOhio ruling, though, the high court’s majority found a Catch-22: “The public-right doctrine cannot save [ProgressOhio, Skindell and Murray], as it does not apply to actions brought in Common Pleas courts.” That’s akin to the “right church, wrong pew” pettifoggery that at times has disenfranchised Ohio voters.
Legalese aside, the issues raised in the JobsOhio challenge seemingly are at least as grave as those the court cited in 1999 in recognizing “public right” standing: “The issues sought to be litigated in this  case are of such a high order of public concern as to justify allowing this action as a public action.”
French wrote that people challenging JobsOhio still have avenues to pursue, a claim that O’Neill’s fellow dissenter, Republican Justice Paul E. Pfeifer, rejected: “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.”
Taxpayers have to hope Pfeifer, however eloquent, was incorrect. Because Ohio’s judiciary, some way, some day, must make it clear whether JobsOhio comports with the state’s constitution. Unfortunately, by ducking a ruling on the merits in this case, the state’s high court appears to be trying to shut the door on any and all such challenges going forward.