Even the appellants, two state lawmakers and two advocacy groups, recognized that they lacked standing in the usual sense in taking JobsOhio to court. They weren’t injured parties, with a direct, personal stake in the outcome. They challenged the constitutionality of the privatized economic development operation launched by Gov. John Kasich.
Unfortunately, a 5-2 majority of the Ohio Supreme Court failed to grasp the significance of the case. It applied a narrow measure to the lawsuit. Writing for the court, Justice Judith French declared that “ideological opposition to a program or legislative enactment is not enough.”
Yet in pursuing the matter, state Sen. Michael Skindell, former state Rep. Dennis Murray, ProgressOhio and the 1851 Center for Constitutional Law have been engaged in more than partisan disagreement. They have taken aim at the structure of state government as it relates to the use of public money in private enterprises. JobsOhio not only received an appropriation from the legislature (since returned). It benefits from a lease arrangement that has routed $1.5 billion in state liquor profits to its coffers.
That money, in turn, is available to promote private economic development. All of this would be fine, in a structural sense, if the state constitution did not bar public funding of private enterprises. So the crucial issue before the high court was whether JobsOhio crossed the line. As Justice Paul Pfeifer argued in his dissenting opinion, these circumstances merited the court granting the appellants an alternative, public-right standing, the issue of such importance to the state that the court must make an assessment.
Pfeifer described the unacceptable outcome of the court citing the lack of standing, JobsOhio escaping such scrutiny even as serious questions about its constitutionality hovered through the legislative process. At one point, no less than William Batchelder, the House speaker, wondered aloud about whether it passed muster.
More, as Pfeifer explained, the state did not erect this barrier between public money and private enterprise in the mid-1800s out of theory. It reflects hard experience. Back then, the legislature tapped private firms to lead the way in building roads, bridges, canals and railroads. Massive corruption followed, business interests abusing their access to the public money, the sordidness triggering a constitutional convention, yielding changes to protect against such excesses.
The court majority tried to reassure, stressing that it did not hold that “no person could ever have standing to challenge JobsOhio.” To which Pfeifer pointedly responded that no one has yet come up with a “realistic example.” These were rare and extraordinary circumstances, a longstanding constitutional principle at stake, deserving the consideration of the justices.
What is left is an unfortunate precedent, Justice Pfeifer rightly warning that the door now is open to skirting judicial review of other constitutionally suspect legislation.