This morning, the Ohio Supreme Court held that state legislators and a progressive interest group lack standing to challenge the constitutionality of JobsOhio, a state-created private development agency. In ProgressOhio.org v. JobsOhio, the Court held 5-2 that there is no generalized right to challenge the constitutionality of legislative actions. Rather, as in federal court, plaintiffs must allege a particularized injury that gives them a concrete stake in the outcome of the litigation. Justice Judith French, writing for the majority, summarized the Court’s conclusion:
We have long held that a party wishing to sue must have a direct, personal stake in the outcome of his or her case; ideological opposition to a program or legislative enactment is not enough. Applying that precedent here, we conclude that appellants have failed to show that they have any personal stake in the outcome of this litigation. They therefore lack the direct injury required for common-law standing. Appellants similarly fail to allege a cognizable basis for statutory standing. Accordingly, we conclude that appellants are not proper parties to challenge the constitutionality of the JobsOhio legislation.
Of note, the court side-stepped the appellants’ claim that they had taxpayer standing to challenge JobsOhio’s constitutionality, finding that the argument was not preserved below.
I participated in an Ohio law professors amicus brief urging this result. Our brief, representing academics with a range of political views, took no position on the legal merits of the underlying claims, or the wisdom of JobsOhio. Our brief urged the Court to refrain from lessening the traditional requirements for standing, and specifically argued against creating broad taxpayer standing as had been urged by the appellants.
The Ohio Supreme Court’s decision ensures that judicial resources will be preserved for cases in which proper parties with concrete interests bring proper claims. Since the nation’s founding it has been recognized that not every constitutional claim belongs in court. Generalized claims that a given public act violates a constitutional constraint are best addressed through the political process, particularly because not every constitutional question has a single, clear answer and it is the people — not the judiciary — who are the ultimate arbiters source of the constitution’s authority.
The Ohio Supreme Court’s decision does not put an end to the legal debate over JobsOhio, nor does it even put an end to all litigation over the question. As Justice French explained near the close of her opinion:
[W]e do not hold, and the parties do not suggest, that no person could ever have standing to challenge JobsOhio. A proper party—i.e., one with legal standing—may unquestionably contest the constitutionality of JobsOhio. As to that proper party, the courthouse doors remain open.
For a claim to be justiciable, it’s not enough that someone objects to a government action. They must also have standing — and that requires a concrete stake in the litigation. That is something the plaintiffs here appeared not to have, so it’s proper that their challenge was properly dismissed. And while the Court reserved judgment on whether taxpayer standing would have been sufficient, I would argue that an individual’s status as a taxpayer, without more, should not satisfy the requirements of standing either.