This blog is being expanded to cover not only executive and legislative actions of interest in Ohio, but to include Ohio Supreme Court decisions and actions which impact political issues. The Court has a variety of political topics on its docket that will be discussed in a variety of posts this year.
In November, the Court heard oral arguments in ProgressOhio vs. JobsOhio, a case which challenges the constitutionality of Jobs Ohio, John Kasich’s privatized economic entity. The Court is likely to be issuing this decision in the next few months.
Despite clear constitutional problems with the JobsOhio, Attorney General Mike DeWine blocked a decision on the merits of the case by raising standing issues. Although Ohio has long recognized that citizens of the state have the right to bring an action challenging the constitutionality of new legislation based upon a broad public right, a variety of interests, primarily from the right, have worked to curtail this right over the past 15 years.
In the mid 90’s Ohio passed what is referred to as “tort reform” legislation which greatly curtailed the availability of tort claim remedies for personal injuries in Ohio. This arose from the belief, in part, that massive judgments for injuries were often excessive and unfair. It was also believed by these interests that punitive damages in particular needed to be controlled since they injured businesses unfairly.
Ohio trial lawyers challenged this new law by bringing the case State ex rel. Ohio Academy of Trial Lawyers v. Sheward 1998 Ohio 276. The Court struck down major aspects of the legislation. Many in the General Assembly and elsewhere in Ohio were very angry about this decision.
Ohio Academy is a lengthy case with an extensive discussion of Ohio constitutional history and analysis of the Court’s original jurisdiction. In Ohio, the Supreme Court is an appellate court, but also has jurisdiction to hear a limited number of cases, primarily writs, as original actions. Writs are suits which involve requests to order individuals, generally government officials, to take certain actions. They do not involve money damages, although sometimes the prevailing party will obtain a money judgment from a writ suit. Much discussion in Ohio Academy, revolved around whether the case was properly filed as an original action. It had very little to do with standing of the lawyers to bring the action.
Soon after this major loss, government attorneys around the state began misusing and misreading the Court’s statements in Ohio Academy to improperly curtail the right of the public to challenge legislation based upon public interest standing. The Tenth District Court of Appeals issued a line of cases over the past 12 years misquoting the case in a way which significantly damaged the law.
When the JobsOhio case reached the Tenth District, it was argued by Victoria E. Ullmann who had been primarily responsible for the litigation from its inception. She had also testified against JobsOhio while it was still in committee in the Ohio Senate. She was able to convince the Tenth District to correct years of improper interpretations of Ohio law and establish a logical standard for determining when public interest standing was appropriate in a case. Although their holding was too narrow to encompass standing for the plaintiffs in JobsOhio, it was a significant holding that vastly improved case law in the Tenth District on this issue.
Ullmann did not argue the case for the relators at the Supreme Court, but appeared as amicus. The relators, all of whom are men, insisted on replacing her with a much younger and less experienced male who had no knowledge of the case. The state also used a different attorney than had argued the case in the Tenth District. Only JobsOhio retained the attorneys that were truly knowledgeable of the case, and they were given only two minutes of oral argument time.
The oral arguments in this case, as well as the briefing on both sides, with the exception of Ullmann’s amicus brief and JobsOhio’s brief to a lesser extent, demonstrated a lack of understanding of the case and ignorance of the 10th District Court of Appeals decision which was the basis of the appeal. Despite the fact that presentation of this case has been damaged by these changes, good arguments in favor of public interest standing are available to the Court to support this issue. A good outcome and decision remain possible despite the significant missteps by the plaintiffs and defendants.