JobsOhio defenders fight foes' standing to sue

Defenders of Ohio's private job-creation agency tell high court that foes lack standing to sue

Associated Press

COLUMBUS, Ohio (AP) -- Defenders of Gov. John Kasich's privatized nonprofit job-creation agency told the state's high court Tuesday that a lawsuit against JobsOhio shouldn't be allowed to proceed.

Briefs filed on behalf of Kasich, JobsOhio and former Republican lawmakers Tom Niehaus and Mark Wagoner, among others, argued that allowing a liberal policy group and two Democratic politicians to challenge JobsOhio's constitutionality in court would upset the "delicate balance" among Ohio's three branches of government.

ProgressOhio, state Sen. Mike Skindell and former state Rep. Dennis Murray contend in the long-running dispute that Ohio's Constitution prohibits public dollars from being given to a corporation such as JobsOhio.

Lawyers for Niehaus, the former Senate president, and Wagoner, a former state senator, told the Ohio Supreme Court that their opponents haven't been personally harmed by JobsOhio — as state law requires to gain standing to sue.

Instead, they told justices, opponents are turning to the courts after being on the losing side of a policy debate. The ex-lawmakers' brief rejects ProgressOhio's position that JobsOhio legislation was written to effectively shield the new privatized operation from public challenge. JobsOhio was created in 2011.

"The issue presented in this appeal is not whether the merits of JobsOhio can be challenged, but how and where such a challenge should take place," they wrote. "Appellants argue that if they are not found to have standing in this action, then (in their words) 'the governmental action at issue here would otherwise go unchallenged.' That is simply not true. JobsOhio can be challenged."

Contentious laws, they told the court, may be challenged through legislative debate and, ultimately, through the election process — with those who dislike laws that are passed throwing out the politicians who passed them. A new Quinnipiac University poll out Tuesday showed Kasich's popularity among voters at an all-time high.

The Republican governor pushed for creation of JobsOhio soon after he was elected in 2010. He advocated the semi-private, nonprofit structure — under the control of an appointed board of directors — because he believed such a structure would be more nimble than the Ohio Department of Development, a government agency.

The libertarian 1851 Center for Constitutional Law has joined ProgressOhio in pursuing standing in the JobsOhio challenge on grounds that the ability to challenge the constitutionality of state laws is valuable to taxpayers of all political persuasions.

But in its Tuesday brief, JobsOhio told justices that its legal foes "ask the Court to cast aside decades of settled law."

"ProgressOhio proposes a legal framework under which any one of Ohio's 11.5 million citizens could impose substantial delay on the legislative process merely by filing a complaint asserting that a new statute violates some provision of the Ohio Constitution," the brief said.

The lawsuit is far from the only obstacle JobsOhio has faced in its short lifetime.

Kasich was forced to back off an early proposal to lead the JobsOhio board himself after criticism that the arrangement was illegal.

State Auditor Dave Yost, Kasich's fellow Republican, successfully subpoenaed JobsOhio's private books recently for a state audit — over the objections of the administration, JobsOhio's leaders and some state lawmakers.

To resolve the issue, the Legislature has since passed a law specifically preventing Yost from auditing JobsOhio's private books, including how proceeds are spent from the sale of $1.46 billion in bonds backed by state liquor profits.

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