State supreme court rules liberal advocacy group can’t sue over JobsOhio

by Marc Kovac | Capital Bureau Chief Published:

COLUMBUS — The Ohio Supreme Court ruled Tuesday that a liberal advocacy group and two Democratic state lawmakers do not have standing to challenge the constitutionality of JobsOhio.

In a 5-2 decision, a majority of justices determined ProgressOhio, state Sen. Michael Skindell (D-Cleveland) and former state Rep. Dennis Murray Jr. (D-Sandusky) were "not proper parties” to challenge the private nonprofit created to head the state’s economic development efforts.

"Appellants have no personal stake in the outcome of this litigation and therefore lack common law standing to challenge the JobsOhio Act," Justice Judith French wrote. She added later, "If and when an injured party seeks to challenge JobsOhio, we may entertain such a case. But those parties are not before us today. Appellants lack standing to bring this suit, and they may pursue it no further."

Justices Paul Pfeifer and William O'Neill dissented.

Pfeifer wrote, "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."

O'Neill added, "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 Ohio Supreme Court is the last house on the street, and passing on this case is an abdication of our duty as protectors of the Constitution."

JobsOhio was created not too long after Kasich took office in 2011 and has been the focus of much debate and criticism ever since.

Supporters believe the nonprofit is better positioned to work with businesses considering expansions or relocations in Ohio, with executives feeling more comfortable discussing such matters behind closed doors.

But opponents say the setup is unconstitutional, funneling public resources to a private organization that is exempted from portions of the state's open meetings and records laws. They also say the Ohio Constitution prohibits the state from establishing such private enterprises.

Courts have not yet considered the constitutional claims. Earlier courts ruled ProgressOhio did not have standing to bring the challenge, so its claims were moot.

The Ohio Supreme Court agreed to consider the standing issue. Had justices ruled in ProgressOhio's favor, the case would have been subject to further proceedings on the constitutionality issue.

Legal counsel for the state and JobsOhio said during earlier oral arguments that bond holders, liquor interests, companies that are unhappy about financial incentives that are awarded or rejected and others could challenge the setup, though none have done so to date.

On Tuesday, justices sided with the state and JobsOhio.

"We have long held that a party wishing to sue must have a direct, personal stake in the outcome of his or her case," French wrote. "Ideological opposition to a program or legislative enactment is not enough."

Marc Kovac is the Dix Capital Bureau Chief. Email him at mkovac@dixcom.com or on Twitter at OhioCapitalBlog.

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