Amicus Brief on Standing in ProgressOhio.Org v. JobsOhio

One of Ohio Governor John Kasich’s more controversial initiatives has been the creation of JobsOhio, a private, nonprofit corporation to encourage investment and economic development within the state. The controversy stems, in part, from the fact that JobsOhio is funded by state liquor revenues.  The state’s limited ability to audit JobsOhio also remains a point of contention.   ProgressOhio.Org, a state-based progressive outfit, and a group of concerned citizens filed suit challenging the constitutionality of JobsOhio alleging, among other things, that the Ohio Constitution bars the state from investing in a private corporation.

Lower courts dismissed the case, concluding that ProgressOhio.Org lacked standing. As a general rule, Ohio courts follow the federal approach of rejecting generic taxpayer standing.  In addition, the lower courts rejected the plaintiffs’ argument that they could fit into a narrow “public interest” exception to the traditional standing requirements. Joined by the libertarian 1851 Center for Constitutional Law, ProgressOhio.Org has brought their case to the Ohio Supreme Court.

Last month, I joined a brief of Ohio legal academics arguing that the lower courts were correct to find that ProgressOhio.Org and the other plaintiffs lack standing to challenge JobOhio. According to our brief, Ohio courts have been correct to adopt a standing doctrine that mirrors those in federal court under Article III. Allowing individual taxpayers or state citizens to file suit any time they believe a given law or initiative might be unconstitutional would risk thrusting the state courts into a wide range of necessarily political debates. If anything, our brief suggests, Ohio courts have already gone too far in allowing a “public interest” exception to the general jurisdictional bar against basing standing for generalized grievances. Our brief takes no position on the merits of the underlying constitutional claims, or the wisdom of JobsOhio, and the signatories represent a range of political perspectives.

I am joined on the brief by Professors Michael Solimine and Bradford Mank of Cincinnati, Professor Lee Strang of Toledo, Professor Christopher Walker of Ohio State and my Case colleagues Andrew Pollis and Cassandra Robertson.  The brief is available online here, and the full docket is here.