*This guest post was co-authored by Professor Michael Solimine and Kristen Elia. Professor Solimine is the Donald P. Klekamp Professor of Law at the University of Cincinnati College of Law. He has written extensively on the topic of standing and civil procedure, and was a signatory to an amicus curiae brief filed on behalf of Ohio law professors in ProgressOhio v. JobsOhio. Ms. Elia is a May 2018 graduate of the University of Cincinnati College of Law, where she has been a student contributor to Legally Speaking Ohio. For additional reading on the cases discussed in this post and the public-rights exception, see Solimine, Recalibrating Justiciability in Ohio Courts, 51 Cleveland State Law Review 531 (2004), and Elia, Ohio’s Standing Requirements and the Unworkable Public-Rights Exception (publication forthcoming in the University of Cincinnati Law Review, volume 86.3).

Standing in Ohio Courts: Divergence From and Convergence with Federal Law

Federal law and state law generally operate in their own separate spheres. It is well accepted of course that where there is conflict between the two, then federal law is supreme. But where the U.S. Constitution or federal statutes don’t apply, state constitutional or statutory law can be applicable. So, for example, it is also well accepted that in a familiar metaphor, federal constitutional law can provide a floor of rights, but state law can provide rights above that floor, if a state so wishes. This permits states to develop law as each sees fit to govern their own unique circumstances, and permits them to act as “laboratories of experimentation,” to employ the famous metaphor of U.S. Supreme Court Justice Louis Brandeis.

These principles also apply to the law of standing, which generally requires that plaintiffs in civil cases have to be injured in some way, or affected by the defendant’s actions, in order to be permitted to bring a suit. Federal law on this issue is based on the U.S. Supreme Court’s interpretation of the requirement in Article III of the U.S. Constitution. That provision doesn’t mention the word “standing,” but does state that only “cases” or “controversies” can be litigated in federal court. The Supreme Court has also held that Article III, by its terms, doesn’t apply to state courts, leaving states free to develop and apply their own standing rules for their own courts.

Most state constitutions, including Ohio’s, don’t have “standing” language either. But the constitutions of Ohio and many other states make reference to the “judicial power,” “cases,” and “justiciable matters,” (Ohio Const., art. IV, §§ 1, 2, 4), or similar terminology, and most states have interpreted such language in a similar manner to that of the federal constitution. Hence, most states apply a standing doctrine similar, but not necessarily identical, to federal standing doctrine.

In what follows we expand upon these points as they pertain to the state courts of Ohio, focusing on recent decisions of the Supreme Court of Ohio. We first summarize federal and Ohio standing law; address how one case applied what appeared to be a potentially expansive exception to normal standing rules; discuss more recent decisions which narrowly interpret that exception without overruling it; and conclude with some observations on the future of standing law in Ohio.

Despite the fact that standing exists as the initial threshold over which a litigant must pass in order to air his or her grievance before a court, federal standing doctrine is neither stagnant nor stable. Its core tenets, those of (1) injury, (2) caused by defendant’s actions, (3) which is apt to be redressed by a remedy the court is prepared to give, have undergone significant changes over time. Initially, the U.S. Supreme Court construed standing narrowly, in a stage of standing history known as the “legal right” phase. Over time, a series of decisions interpreting statutes which allowed for review of administrative decisions expanded the Court’s narrow interpretation of standing, culminating, in the 1970s, in a highly permissive, functional approach to the doctrine. Decisions during the late 1970s onwards, however, reigned in the Court’s permissive interpretation in some areas of the law. E.g., Allen v. Wright; Lujan v. Defenders of Wildlife. Today, federal standing remains malleable and evolving, and its application is by no means always consistent or clear. E.g., Spokeo, Inc. v. Robins (addressing when Congress can provide for standing when there is a statutory violation but the plaintiff suffers no apparent injury, and adding that an injury must be “particularized” for a plaintiff).

Ohio standing law, for the most part, reflects the federal requirements of injury, causation, and redressability. The Supreme Court of Ohio, has, however, carved out an exception to traditional standing. When a plaintiff brings an action presenting “rare and extraordinary” issues which “threaten serious public injury,” he or she need not allege any personal stake in the outcome of the case in order for the court to hear it.

Ohio law’s exception to the injury prong originated with State ex rel. Ohio Acad. of Trial Lawyers v. Sheward. In Sheward, plaintiffs-relators filed an action in prohibition and mandamus against six Ohio common pleas judges, challenging the constitutionality of Am.Sub.H.B. No. 350, a comprehensive tort reform bill. Plaintiffs (the plaintiffs’ trial lawyers’ organization and the Ohio AFL-CIO in the underlying tort actions) alleged the bill violated the Ohio Constitution as an improper legislative usurpation of judicial power. Specifically, plaintiffs alleged the bill reenacted a piece of legislation previously found unconstitutional by the Supreme Court of Ohio. Defendants alleged plaintiffs lacked the kind of personal injury necessary to satisfy traditional standing requirements, in that plaintiffs alleged only a “generalized public interest” in the outcome of the case. The court allowed the action to proceed as a “public action,” the purpose of which was to enforce a “public right.” It held such an action is warranted in “the rare and extraordinary” situation where plaintiffs challenge the constitutionality of a legislative enactment on the grounds that it operates, directly and broadly, to divest the courts of judicial power. It held that where a plaintiff brings an action, the object of which is “to procure the enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that relator is an Ohio citizen and, as such, interested in the execution of the laws of the state.”

The court has addressed the exception in recent cases, but has, for the most part, declined to apply it. In ProgressOhio v. JobsOhio, ProgressOhio, a nonprofit organization dedicated to advancing progressive causes, sued JobsOhio, a public-private development corporation which privatized the Ohio Department of Development; ProgressOhio alleged the program violated various provisions of the Ohio Constitution. The court held ProgressOhio did not have standing to sue, finding it alleged mere “ideological opposition” to the program, but did not meet traditional standing requirements because it did not sufficiently allege a direct, personal stake in the outcome of the case. The court refrained from applying the public-rights exception, concluding ProgressOhio did not present an issue of sufficient magnitude (not “rare and extraordinary” enough) to qualify for the exception. Additionally, the court clarified that the public-rights exception applies only to original actions in mandamus and/or prohibition, and ProgressOhio did not qualify because it brought a declaratory-judgment action.

Similarly, in State ex rel. Walgate v. Kasich, a number of private and institutional plaintiffs sued Ohio Governor John Kasich and various Ohio lottery organizations, alleging that numerous pieces of legislation establishing casinos in Ohio violated the Ohio Constitution. Plaintiffs alleged standing based on the “negative effects of gambling.” The court found standing for only one plaintiff, holding that the negative effects of gambling did not constitute concrete injuries different in any respect from those experienced by the general public, were not caused by the state’s conduct, and could not be redressed by the requested relief. In deciding this case, the court did not address the public-rights exception. The dissent, authored by Justice Pfeifer, however, argued the public-rights exception should apply because the case was of “great importance” to the public, based on the fact that three million Ohioans voted on the legislation at issue.

 In State ex rel. Ullmann v. Husted , a plaintiff again attempted to challenge the legislation establishing JobsOhio, contending the act was illegal because Ohio’s wholesale liquor business funded the program, and thus, those who purchased alcohol in Ohio were being “forced” to fund JobsOhio. The court again refused to find standing, holding the plaintiff alleged no injury concrete enough to confer traditional standing (and, additionally, that she had waived any argument of traditional standing), and did not qualify for the public-rights exception because she relied on misapplied precedent (the case she used, State ex rel. Trauger v. Nash, did not support her assertion of public-rights standing because in Trauger, plaintiff sought to compel the governor to fulfill a statutory duty, whereas here the statute at issue gave the attorney general discretion to act). Finally, the court found plaintiff’s other public-rights arguments mirrored those made in ProgressOhio, and reaffirmed the inadequacy of those arguments. The dissent argued that, without examining the merits of plaintiff’s claim, the court could not determine she did not allege issues of great importance to the general public which would bring her within the exception’s purview.

Finally, in a very recent decision, State ex rel. Food & Water Watch v. State, the court roundly criticized Sheward, casting serious doubt on the case’s continued validity, without outright overruling it. Plaintiffs (Food & Water Watch and FreshWater Accountability Project) requested a writ of mandamus to compel certain government officials to promulgate rules regarding the storage, recycling, treatment, processing, and disposal of waste products associated with oil drilling. In holding plaintiffs did not have standing under the exception, the court held that plaintiffs did not allege “rare and extraordinary” issues such that the exception would apply. Further, plaintiffs did not meet traditional standing requirements because they did not prove redressable injuries in the affidavits submitted by plaintiff’s members. In denying standing, the court suggested it may never again grant public-rights standing, noting that it had not done so in 15 years; further, it went on to describe Sheward as “a deeply divided” decision at its inception, and denounced its holding as “questionable,” its possible repercussions as “egregious and problematic.”

In another recent standing decision (Preterm-Cleveland, Inc. v. Kasich), the court held a plaintiff ambulatory surgical facility did not have standing to challenge a 2013 budget bill. The surgical facility, Preterm, argued the bill violated the Ohio Constitution’s “single-subject” provision, when certain abortion-related provisions that were unrelated to the state’s budget were included in the bill. Preterm alleged injury based on added administrative burdens it would face in order to comply with the budget’s abortion-related provisions. Despite Preterm’s allegations of present injury, the court found Preterm lacked standing because it failed to prove it suffered or was threatened with any concrete injury from passage of the bill.

As the above decisions suggest, the court seems to be taking a stringent approach to standing, requiring plaintiffs to plead injury with particularity and to prove their injuries are both tangible and redressable. As far as the Sheward exception is concerned, the court seems inclined to retire it, if not outright overrule it. Past cases addressing the exception have curbed the exception’s application into effective nonexistence. Although Walgate and Husted did nothing to expand or curtail the exception, ProgressOhio limited the exception’s application to original actions in mandamus. Further, Food & Water Watch strongly indicates where the court stands today in terms of loosened justiciability. In Food & Water Watch, the court suggests that it may never apply the exception again; it noted that it has not done so in 15 years, “even assuming that this court would still grant a party a public-right-doctrine exception” in the appropriate case, that Sheward is questionable “at best,” and that the exception’s use should be avoided so the court does not risk issuing an advisory opinion—something it is forbidden from doing. Further, the court sounded some cautionary words about loosened justiciability standards as a whole. It noted that loosened standing requirements “can unfortunately result in ‘political opportunism, allowing the majority to invalidate disfavored law using a questionable approach,’” and that Sheward allows for the court to engage in “policy-making” by ruling on enactments of the General Assembly, despite the fact that the acts have caused no present injury.

Based on the court’s current application of standing doctrine, a plaintiff asserting public-rights standing is unlikely to succeed, unless the plaintiff can prove he meets the exact facts presented in Sheward; further, he should be cautious in alleging any injury the court could potentially treat as “speculative” or “not concrete,” as the court seems skeptical of any injury that cannot be proven monetarily.