Ohio standing

The Ohio Supreme Court has ruled that standing can exist under public-right doctrine.

In an original action filed in the Ohio Supreme Court, State ex rel. Ohio Acad. of Trial Lawyers v. Sheward, the relators sought relief in mandamus and prohibition against six common pleas court judges and challenged the constitutionality of Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, as an improper legislative usurpation of judicial power, and an intrusion upon the exclusive authority of the judiciary, in violation of Section 32, Article II, and Sections 1, 5(A)(1) and (B), Article IV, of the Ohio Constitution." The relators requested the following relief:

(1) a writ of prohibition preventing respondents from implementing those provisions in Am.Sub.H.B. No. 350 that intrude on judicial authority, (2) a writ of mandamus ordering respondents to follow "the rules of civil procedure, the rules of evidence, the relevant constitutional decisions and common-law [causes of action] * * *, notwithstanding contrary provisions in Am.Sub.H.B. 350," and (3) pursuant to their ancillary claims, an order declaring that Am.Sub.H.B. No. 350 violates the Ohio Constitution [**13] and enjoining its implementation.

Id at. 453. The majority in Sheward found Am.Sub.H.B. No. 350 was unconstitutional in its entirety, and granted the writs of prohibition and mandamus as requested by the relators. See State ex rel. Int'l Heat & Frost Insulators & Asbestos Workers Local # 3 v. Court of Common Pleas, 2006-Ohio-274, ¶ 8 (Ct. App.) (discussing case).

The landmark Sheward case held as follows:

The Application of the Public-Right Doctrine to the Facts of This Case Does Not Create Any New Judicial Doctrine or Theory of Standing

In his dissent, the Chief Justice claims that "the majority has, in applying paragraph one of the syllabus to the facts of this case, created a new judicial doctrine pursuant to which any citizen is deemed to have standing to assert violation of the public right to preservation of judicial power and implementation of the doctrine of separation of powers." According to the Chief Justice, it is "the majority's proposition that the actual-injury component of standing should be replaced by a public-right component in cases where it is asserted that a coequal branch of government has exceeded its constitutional authority." He argues that although the public-right doctrine "dates from the last century as an exception to the personal-injury requirement of standing * * *, the extension of that doctrine so as to equate public duty with enforcement of the doctrine of separation of powers, or with preservation of judicial power within the judiciary, is not a long-standing legal principle. The majority has indeed created a new theory of standing * * * .

"The public-right doctrine is, indeed, an exception to the personal-injury requirement of standing. But more than that, "the public action is conceived as an action to vindicate the general public interest. Not all alleged illegalities or irregularities are thought to be of that high order of concern." Jaffe, Standing to Secure Judicial Review: Public Actions (1961), 74 Harv.L.Rev. 1265, 1314. Thus, this court will entertain a public action " 'under circumstances when the public injury by its refusal will be serious.' " State ex rel. Trauger, supra, 66 Ohio St. at 616, 64 N.E. at 559, quoting Ayres, supra, 42 Mich. at 429. Similarly, in State ex rel. Sego v. Kirkpatrick (1974), 86 N.M. 359, 363, 524 P.2d 975, 979, the Supreme Court of New Mexico held that "even though a private party may not have standing to invoke the power of this Court to resolve constitutional questions and enforce constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance." In Jenkins v. State (Utah 1978), 585 P.2d 442, 443, the Supreme Court of Utah held that while it is true that under "the usual rule * * * one must be personally adversely affected before he has standing to prosecute an action * * *, it is also true this Court may grant standing where matters of great public interest and societal impact are concerned."

The application of these principles to protect or enforce the people's right to maintain the constitutional system of justice they created is nothing new. See, e.g., In re Assignment of Judges to Hold Dist. Courts, supra; State v. Brown, supra. It may be true that this court has not hitherto applied the public-right doctrine to review a statute like Am.Sub.H.B. No. 350, but we have never been confronted with a statute quite like Am.Sub.H.B. No. 350; and it is certainly no disparagement to the principles that underlie the doctrine to apply it so as to protect the people's interest in keeping the judicial power of the state in those in whom they vested it.

We have not proposed, as the dissent suggests, that our citizens have standing as such to challenge the constitutionality of every legislative enactment that allegedly violates the doctrine of separation of powers or exceeds legislative authority. We have expressed quite clearly in our preamble to the issue of relators' standing that this court will entertain a public action only "in the rare and extraordinary case" where the challenged statute operates, "directly and broadly, to divest the courts of judicial power." (Emphasis added.) We will not entertain a public action to review the constitutionality of a legislative enactment unless it is of a magnitude and scope comparable to that of Am.Sub.H.B. No. 350.

It is incongruous, therefore, for the dissent to suggest that we have created a new doctrine or theory of standing, and it is unfortunate that the dissent has chosen to distort our holding in order to criticize it.

State ex rel. Ohio Acad. of Trial Lawyers v. Sheward, 1999-Ohio-123, 86 Ohio St. 3d 451, 502-04, 715 N.E.2d 1062, 1103-04

The Court had observed earlier in its opinion that:

"Ordinarily a person is not authorized to attack the constitutionality of a statute, where his private rights have suffered no interference or impairment, but as a matter of public policy a citizen does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself and citizens generally.

"The court explained that "where a public right, as distinguished from a purely private right, is involved, a citizen need not show any special interest therein, but he may maintain a proper action predicated on his citizenship relation to such public right. This doctrine has been steadily adhered to by this court over the years." Id. at 150-151, 54 Ohio Op. at 393, 122 N.E.2d at 107.

State ex rel. Ohio Acad. of Trial Lawyers v. Sheward, 1999-Ohio-123, 86 Ohio St. 3d 451, 473, 715 N.E.2d 1062, 1083

Subsequent decisions

The above case was decided in 1999. Since then it has been cited and distinguished by numerous Ohio decisions, as follows.