Both sides got the same question: "Who has standing to sue in a case like this?”
Chief Justice Maureen O’Connor asked it of Maurice Thompson from Progress Ohio, which filed the suit.
“Does every Ohioan have the right to stand where you are today?” she continued.
Thompson started to answer: “In certain cases, it’s imperative...“ and O'Connor cut him off.
“No. This case. This case. Had they gotten, done their filings within the 90 days.”
Responded Thompson, “Yes, your honor. It’s imperative in certain cases, including this one, that any Ohioans in their capacity as a citizen or a taxpayer have the standing to enforce the Constitution.”
And Justice William O’Neill asked the question of state deputy solicitor Steven Carney.
“Who has standing to challenge Progress Ohio – or, I’m sorry, JobsOhio? I keep getting my organizations mixed up. Who has standing today?”
Answered Carney, “I believe that if they disagree with the transaction, liquor, private-party people who deal with liquor who now deal with the new arrangement, or bondholders –“
This time, it was up to O'Neill to cut him off: “Why? Why are they different?”
Carney responded: “Because they have a concrete interest in the transaction.”
Who has rights?
Thompson said this law implicates public rights, not individual rights – and he said if no one has the standing to challenge laws, lawmakers are all powerful and can legislate at will. But Carney and the JobsOhio side argued that Progress Ohio wants an unprecedented form of standing that would allow 11.5 million people to legally fight any state law.
“Their rule has no limits. It asks you to clear several constitutional hurdles. ... They want you to throw away all that precedent, let everybody sue, as long as it’s a constitutional challenge. That’s their only limit.”
The JobsOhio side also argued that there’s no investment of public money here so there can’t be any taxpayer standing, because JobsOhio is a private non-profit corporation.
That was just one of the several hints of possible future arguments about JobsOhio, including about its transparency. But those won’t happen unless the Supreme Court rules that Progress Ohio has standing and that the lawsuit can proceed. Thompson said after the arguments that he feels that it will.
Blacking out the constitution
“I don’t exactly know which justices the votes will come from or exactly what they’ll say, but if they don’t want to take a black magic marker and redact half of the Ohio Constitution, then they have to rule in our favor.
"I think that they recognize that this body has a place in our state government, and that that place will be lost if Progress Ohio doesn’t have standing here.”
There’s no timeline for a ruling, though Thompson said he thinks his lawsuit against the state over Medicaid expansion will be decided before this one will.
The issue of standing is key in several other cases, including the lawsuit over video lottery terminals at horseracing tracks that was filed by Progress Ohio and the conservative Ohio Roundtable. The Ohio Roundtable was also part of this lawsuit, along with two Democratic lawmakers.
All but one justice on the court are Republicans. One of those Republicans, Justice Paul Pfeifer, said in court that this is a complicated case and that perhaps it should be tried in common pleas court – which is exactly what would happen if Progress Ohio prevails.