Created on Wednesday, 06 November 2013 Written by JULIE CARR SMYTH, AP Statehouse Correspondent
COLUMBUS, Ohio (AP) — Before foes of the privatized Ohio jobs agency created by Republican Gov. John Kasich can challenge its constitutionality, they must persuade the courts they have the right to sue.
Whether opponents have legal standing will be the issue before the Ohio Supreme Court when parties in the long-running JobsOhio case face off Wednesday.
The ProgressOhio liberal policy group and two Democratic state lawmakers brought the lawsuit in 2011, shortly after JobsOhio was created. Kasich fashioned the private nonprofit board of business leaders as a nimbler, faster substitute for the state Development Department.
Lower courts have so far found opponents lack standing to bring their constitutional challenge, which centers on the public-private arrangement enjoyed by JobsOhio.
So what the Supreme Court decides after this week's oral arguments will be closely watched by politically diverse groups with histories of bringing legal challenges against the government.
Among those that have weighed in on the case are the Ohio Roundtable, whose anti-slots lawsuit hinges on the justices' decision; and the 1851 Center for Constitutional Law, a libertarian organization that's allied with ProgressOhio and will argue the case.
"Standing is the most critical of constitutional issues because it is the vehicle that provides Ohioans with access to all other rights," the plaintiffs say in court briefings. "Without standing to enforce constitutional limits on government, those limits become meaningless, the legislature becomes all-powerful, and the judiciary is of little constitutional consequence."
Lawyers for Kasich argue that ProgressOhio has inappropriately turned to the courts to settle what is essentially a political dispute. They argue that Ohio's constitution requires plaintiffs to show concrete personal harm to gain standing.
The state contends that ProgressOhio and its allies "ask the Court to throw out Ohio's standing rules, opening the courthouse doors to any group that says its attack upon a law is in the 'public interest.'"
State lawyers warn justices that awarding standing to ProgressOhio's side could dramatically expand the scope of similar lawsuits to include "everything from economics to education to the state lottery."
Settling the standing question as it applies to JobsOhio is complicated by the law that created the agency. It requires that all constitutional challenges be brought within 90 days of enactment. ProgressOhio quickly filed its lawsuit within that window while acknowledging that the time period was too short to measure any real harm from the bill.
The state took that as a concession.
"In sum, this case, despite the headlines and the heated rhetoric, is an easy legal one as a matter of settled doctrines," they argued in court filings. "The applicable standing rules are well-settled, and ProgressOhio fails to satisfy them, by its own admission."
But ProgressOhio says it would be "absurd" for justices to interpret the law so that no one could challenge it or for the Legislature to write a law in such a way.