JobsOhio opponents seek right to sue

11/6/2013

COLUMBUS — Ohio Supreme Court Chief Justice Maureen O’Connor today wasted no time cutting to the point in a challenge to the existence of the state’s private, non-profit economic development corporation.

“If not you and your group, who is positioned to bring this sort of challenge?” she asked Maurice Thompson, director of the conservative 1851 Center for Constitutional Law representing a liberal advocacy group and two Democratic lawmakers in their challenge of JobsOhio.

The high court must decide whether the plaintiffs have legal standing on behalf of the public to challenge the constitutionality of Ohio’s intermingling of state assets with a private corporation that has assumed some of its prior functions.

“It appears that nobody has standing if the plaintiffs here do not have standing, and this causes judicial review to evaporate in instances like this,” Mr. Thompson said.

Soon after Gov. John Kasich took office in 2011, the Republican-controlled General Assembly approved his top priority of creating the non-profit, private entity to negotiate economic development deals for the state away from public record, ethics commission, state audit, and other restrictions that apply to a government agency.

To provide its lifeblood, the state leased its lucrative liquor monopoly to JobsOhio for an upfront $1.4 billion. JobsOhio issued bonds guaranteed by future profits of the enterprise.

But because ProgressOhio, Sen., Mike Skindell (D., Lakewood), and former state Rep. Dennis Murray, of Sandusky, could not show they have suffered personal harm from the deal, their challenge was thrown out of Franklin County Common Pleas Court.

Waiting in the wings to hear the outcome of this case is another with potentially huge consequences for the state — a challenge to lawmakers’ approval without the vote of the people of slots-like video lottery terminals at horse-racing tracks.

The state contends that there is no unconstitutional intermingling of public money with a private corporation and that only someone who suffers personal or financial harm — such as a liquor licensee or a business angered that a competitor has been given a JobsOhio-financed advantage — would have standing to sue.

Otherwise, it argued, the court would be opening the courthouse doors to anyone just because they disagree with a policy decision of government.

The state also cautioned that just because someone else didn’t challenge the constitutionality of JobsOhio within the 90-day window created by the law creating the entity doesn’t mean others couldn’t have done so if they wanted to.

“Having a claim and choosing to exercise it are different things,” said Stephen Carney, of the Ohio attorney general’s office.

From its questioning, the justices appeared to be split on the issue.

Justice Paul Pfeifer referred to another criticism of JobsOhio, the fact that many of its functions take place out of sight.

“How do [potential plaintiffs] know when the legislature says JobsOhio gets to do everything in secret?” he asked. “How do you know you’ve just been harmed?”

The court did not immediately rule. If it does determine that the lawsuit can proceed, it could send it back to Franklin County for further proceedings or take up the constitutionality issue directly itself.