‘Public right’ standing goes the way of the dodo: How government entities are affected

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Proponents of so-called public-law litigation — lawsuits seeking to vindicate broad social or political causes important to large numbers of people — were dealt a blow in December when the Ohio Supreme Court eliminated one path toward having state court judges hear those kinds of cases.

In State ex rel. Martens v. Findlay Mun. Court, the Supreme Court considered whether a property owner in northwest Ohio had standing to sue the local court system to prevent the judges from deciding cases involving how landlords are taxed. The plaintiff himself a landlord, but was not a party to any underlying tax-related cases in those local courts.

The court of appeals dismissed the landlord’s original suit, writing that he had no standing to sue the local judges because he was involved in no tax matters himself. The Supreme Court affirmed and held that a plaintiff acquires standing to sue only when there is “actual injury fairly traceable to the defendant’s conduct and that it is likely that a court can redress the injury.” Without experiencing any injury himself, the landlord Martens was therefore out of luck and his lawsuit was jettisoned.

But the Supreme Court’s holding in Martens had a wider impact: It upended a precedent that had been created 25 years earlier, when a prior high court determined that in rare cases of great importance and interest to the public — so-called public-law litigation — members of the public may avoid the traditional standing requirements and sue merely because the case deserved a hearing. Under this principle creating “public right” standing, only in cases so “rare and extraordinary” would this exception to traditional standing principles survive — cases of a magnitude and scope comparable to, for example, a lawsuit challenging statewide tort reform legislation, which was at issue when the public right standing doctrine was first created in the 1999 case titled State ex rel. Ohio Academy of Trial Lawyers v. Sheward.

In Martens, the landlord claimed he, too, was entitled to public right standing even though he himself was not the target of any tax enforcement actions in the local courts. He argued that local courts’ jurisdiction to hear municipal tax cases against landlords was of such great importance and interest to the public that the case could be heard despite that he himself had no injury.

Not so, came the Supreme Court’s response. Not only did the court reject Martens’ standing to sue, but also it eliminated the doctrine of public right standing altogether, writing that the 1999 decision was an abuse of judicial power. “Sheward is an aberration in our caselaw,” the court wrote. “It was contrary to our deeply rooted standing requirement and the Ohio Constitution,” which obligates litigants to show that they have been personally injured before seeking relief in court.

In public-law cases, the defendants are often large bureaucratic institutions or agencies of the state, regional or local government, and the subject matter is usually the policy, practice, operation or decision making of those entities. Public-law litigation in Ohio, where the notion of public right standing arises most frequently, will henceforth require the presence of a plaintiff with an actual injury — or “wallet injury,” as Justice Antonin Scalia once called it, an injury he called “concrete and particularized” as opposed to “psychic injury” alone.

The Martens decision should be welcomed by lawmakers and government regulators across the state for its elimination of a swath of plaintiffs who are not directly injured by the targets of their ire. 

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