State ex rel. Martens v. Findlay Mun. Court

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Martens v. Findlay Mun. Court, Slip Opinion No. 2024-Ohio-5667.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2024-OHIO-5667

THE STATE EX REL. MARTENS, APPELLANT , v. FINDLAY MUNICIPAL COURT

ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Martens v. Findlay Mun. Court, Slip Opinion No.

2024-Ohio-5667.]

Mandamus—Standing—Public-rights doctrine—State ex rel. Ohio Academy of

Trial Lawyers v. Sheward overruled—Neither appellant nor future litigants

may rely on Sheward’s public-right doctrine to bypass the traditional

requirement that a litigant allege that he has been personally injured before

he may seek relief in court—Appellant failed to establish taxpayer

standing—Court of appeals’ dismissal of complaint for lack of standing

affirmed.

(No. 2024-0122—Submitted September 3, 2024—Decided December 5, 2024.)

APPEAL from the Court of Appeals for Hancock County, No. 5-23-12.

__________________

DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and

SUPREME COURT OF OHIO

FISCHER and DETERS, JJ., joined. BRUNNER, J., concurred in judgment only, with

an opinion joined by DONNELLY and STEWART, JJ.

DEWINE, J.

{¶ 1} George Martens filed a complaint in the Third District Court of

Appeals for a writ of mandamus against various judges and courts in Hancock

County, alleging that they lacked jurisdiction to decide certain tax cases. The Third

District dismissed the case, concluding, among other things, that Martens lacked

standing. Now Martens appeals to this court.

{¶ 2} A longstanding principle requires a litigant to establish standing—that

is, that he has been personally injured—before he may seek relief in court. Martens

has not alleged a personal injury. Instead, he relies on something called the public-

right doctrine, which this court recognized in State ex rel. Ohio Academy of Trial

Lawyers v. Sheward, 1999-Ohio-123, ¶ 132, 33, to claim that he does not have to

meet the traditional standing requirement. Alternatively, he argues that he has

standing as a taxpayer to bring this case.

{¶ 3} We reject Martens’s attempt to rely on Sheward to bypass the standing

requirement. Sheward is an aberration in our caselaw. It was contrary to our deeply

rooted standing requirement and the Ohio Constitution. It was wrong when it was

decided and remains wrong today. Tellingly, this court has not allowed a litigant

to rely on Sheward in over 20 years. Today, we expressly overrule Sheward and

decline to allow Martens to rely on its exception to the standing requirement.

{¶ 4} Nor can Martens establish taxpayer standing. Because Martens

lacked standing to bring his complaint, we affirm the judgment of the court of

appeals.

I. BACKGROUND

{¶ 5} Martens owns rental property in and pays taxes to the City of Findlay.

He brought this mandamus action in the Third District against the Findlay

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Municipal Court, the Hancock County Court of Common Pleas, and the judges of

those courts because he believes that they are improperly exercising jurisdiction

over cases in which the government seeks to recover unpaid municipal income

taxes. But Martens has not alleged that he was a party to any tax case pending

before those courts when he filed this action.

{¶ 6} The judges and the courts filed a motion to dismiss, arguing that

Martens lacked standing to bring the complaint and that he had not stated a

cognizable mandamus claim. The Third District granted the motion on both

grounds and dismissed the case.

{¶ 7} Martens has appealed to this court as of right.

II. ANALYSIS

{¶ 8} We note at the outset that Martens has requested oral argument. This

case—a direct appeal from the court of appeals—does not fall into the category of

cases in which this court regularly grants oral argument. See S.Ct.Prac.R. 17.01.

We may, however, grant oral argument in direct appeals such as this one at the

request of a party. See S.Ct.Prac.R. 17.02. But, because oral argument would not

be helpful in this matter, we decline to do so.

{¶ 9} In the proceeding below, the court of appeals dismissed this action

because it determined that Martens lacked standing to assert his claims and because

he had failed to state a claim for mandamus relief. Because standing is a

jurisdictional requirement, we address that issue first. And because the standing

issue proves dispositive of this matter, we address only that issue.

A. Standing is a deeply rooted constitutional requirement that we cannot ignore

{¶ 10} The Ohio Constitution gives us limited power. It vests this court and

inferior courts with only the “judicial power.” Ohio Const., art. IV, § 1. The

judicial power is the power to decide specific cases between conflicting parties.

Stanton v. State Tax Comm., 114 Ohio St. 658, 671-672 (1926). That means that

we can only “decide actual controversies between parties legitimately affected by

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specific facts.” Fortner v. Thomas, 22 Ohio St.2d 13, 14 (1970). We cannot

“declare principles or rules of law which cannot affect the matter at issue in the case

before [us].” Travis v. Pub. Util. Comm., 123 Ohio St. 355, 359 (1931). Rather,

the Ohio Constitution limits our jurisdiction to cases where the parties have

standing. See State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35

Ohio St.2d 176, 179 (1973).

{¶ 11} The standing requirement is deeply rooted in our caselaw. As we

explained in a case decided soon after the adoption of the 1851 Ohio Constitution,

[t]he general and abstract question, whether an act of the legislature

be unconstitutional, can not with propriety be presented to a court.

The question must be, whether the act furnishes the rule to govern

the particular case. What, then, is the effect and operation of the act

upon the particular case? and does such effect and operation conflict

with any provision of the constitution?

Foster v. Wood Cty. Commrs., 9 Ohio St. 540, 543 (1858); see also State ex rel.

Williams v. Indus. Comm., 116 Ohio St. 45, 56 (1927) (lead opinion), quoting

Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576 (1915) (“‘It is the well-settled rule of

this court that it only hears objections to the constitutionality of laws from those

who are themselves affected . . . .’ This court has always adhered to that rule.”).

{¶ 12} To have standing, a plaintiff must show an actual injury fairly

traceable to the defendant’s conduct and that it is likely that a court can redress the

injury. ProgressOhio.org, Inc. v. JobsOhio, 2014-Ohio-2382, ¶ 7. In mandamus,

that means that the relator must show that he “‘would be directly benefitted or

injured by a judgment in the case.’ ” State ex rel. Hills & Dales v. Plain Local

School Dist. Bd. of Edn., 2019-Ohio-5160, ¶ 9, quoting State ex rel. Sinay v.

Sodders, 1997-Ohio-344, ¶ 9. And the injury must be personal—that is, the plaintiff

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or relator must suffer particular harm that is different from some general harm

suffered by the public at large.1 See ProgressOhio.org at ¶ 7; State ex rel.

Masterson v. Ohio State Racing Comm., 162 Ohio St. 366, 368 (1954). Martens,

of course, argues nothing of the sort.

B. The Sheward public-right doctrine departs from our well-established standing

requirement

{¶ 13} In arguing that he does not need to meet the traditional standing

requirement, Martens relies on our decision in Sheward and insists that he is entitled

to “public right” standing. In Sheward, this court abruptly departed from our long

history of “always adher[ing]” to the standing requirement, Williams at 56.

Sheward involved a challenge to tort-reform legislation enacted by the General

Assembly. Sheward at ¶ 10, fn. 6. Rather than challenge the application of the law

in the context of a particular case, a trade association of trial attorneys filed an

original writ action in this court against six Ohio common-pleas-court judges “‘in

their official capacity and representing those similarly situated.’ ” Id. at ¶ 1, quoting

the complaint. The trial attorneys asked this court to issue writs of mandamus and

prohibition (1) prohibiting the judges from following the new law and (2) declaring

the law unconstitutional. Id. at ¶ 4.

{¶ 14} Although the Sheward court acknowledged the traditional standing

requirement, it created an exception “when the issues sought to be litigated are of

great importance and interest to the public.” Id. at ¶ 33. Thus, it held that “where

1. Our election-mandamus cases represent the outer bounds of the standing requirement. We have

long held in mandamus cases regarding election matters that an elector is a proper relator because

he is beneficially interested in the case. State v. Brown, 38 Ohio St. 344, 346-347 (1882); State ex

rel. Gregg v. Tanzey, 49 Ohio St. 656, 662 (1892). The elector’s beneficial interest arises from the

particular injury to his vote that would occur if election officials disregarded their election duties.

See, e.g., Brown at 346-347 (holding that the elector-relator was interested in compelling officials

to hold elections for the proper number of judges—and beneficially interested because “as an elector,

he would be entitled to vote at the election, if an election were proper, and would be himself eligible

to the office”). Because of this unique injury to their vote, electors satisfy the standing requirement

in these cases.

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the object of an action in mandamus and/or prohibition 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 this state.” Id. at ¶

47. The court then proceeded to hold that the law was unconstitutional and granted

writs precluding its application.

{¶ 15} Writing for three dissenting justices, Chief Justice Thomas Moyer

explained that the majority’s new public-right doctrine stood contrary to principles

that “ha[d] governed the proper exercise of [the court’s] original jurisdiction since

Ohio became a state.” Id. at ¶ 183 (Moyer, C.J., dissenting). He pointed out that

the Ohio Constitution did not confer this court with original jurisdiction to issue

declaratory judgments and that the effect of the court’s order in Sheward was to

grant a declaratory judgment that the tort-reform legislation was unconstitutional.

Id. at ¶ 180. Chief Justice Moyer also noted that under the court’s traditional writ

standards, the relators were not entitled to relief because an adequate remedy at law

existed to determine the constitutionality of the legislation by way of review in the

trial courts and subsequent appeal. Id. at ¶ 211. Finally, he explained that the

majority’s holding was contrary to the principle of legal standing under which

“courts decide only cases or controversies between litigants whose interests are

adverse to each other, and do not issue advisory opinions.” Id. at ¶ 213.

{¶ 16} Chief Justice Moyer was not alone in criticizing Sheward. One

commentator described it as an “example[] of abusive judicial power” and said that

its “controversial recognition of original jurisdiction . . . present[ed] daunting

obstacles to the preservation of the separation of powers.” Loeb, Abuse of Power:

Certain State Courts Are Disregarding Standing and Original Jurisdiction

Principles So They Can Declare Tort Reform Unconstitutional, 84 Marq.L.Rev.

491, 514 (2000). Another complained that “Ohio’s highest court egregiously

ignored well-established jurisdictional rules laid down by the court itself, decades

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of procedural formalities, and a stream of consistent case law dating back to

colonial America.” Blake, Note, State ex rel. Ohio Academy of Trial Lawyers v.

Sheward: The Extraordinary Application of Extraordinary Writs and Other Issues;

The Case that Never Should Have Been, 29 Cap.U.L.Rev. 433, 434 (2001). Yet

another commentator concluded that “[t]he Sheward court overreached its

constitutional bounds,” in violation of separation-of-powers principles. Elia,

Ohio’s Standing Requirements and the Unworkable Public-Rights Exception, 86

U.Cin.L.Rev. 1019, 1043 (2018). And an article in the Harvard Law Review

bemoaned that “the Sheward majority may have undermined the Ohio Supreme

Court’s valued position as defender of the state’s constitution.” Note, State Tort

Reform—Ohio Supreme Court Strikes Down State General Assembly’s Tort Reform

Initiative—State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d

1062 (Ohio 1999), 113 Harv.L.Rev. 804, 809 (2000).

{¶ 17} This court beat a hasty retreat from Sheward soon after it was

decided. We have explicitly relied on Sheward to find public-right standing in only

one other case. See State ex rel. Ohio AFL-CIO v. Bur. of Workers’ Comp., 2002-

Ohio-6717, ¶ 12 (allowing two unions and a union president to challenge the

constitutionality of a legislative enactment by way of an original action). In another

case decided that same year, the court allowed a labor union to file an original action

challenging an action taken by the administrator of the Bureau of Workers’

Compensation. See State ex rel. United Auto Aerospace & Agricultural Implement

Workers of Am. v. Bur. of Workers’ Comp., 2002-Ohio-2491. Although the

majority in that case did not cite Sheward or the public-right doctrine, the dissent

noted that the relators had relied on them in litigating the action. Id. at ¶ 26 (Moyer,

C.J., dissenting).

{¶ 18} Since 2002, we have not conferred Sheward public-right standing in

a single case. Instead, we have recognized the public-right doctrine as an anomaly

in our caselaw, but have stopped just short of overruling Sheward. In

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ProgressOhio.org, for example, we declined to export the Sheward public-right

doctrine from original actions filed in this court to actions filed in the courts of

common pleas. 2014-Ohio-2382 at ¶ 10-11. At the same time, “[w]e recognize[d]

. . . broader concerns about the overall validity of Sheward and the public-right

doctrine,” noting that “Sheward was a deeply divided, four-to-three decision” and

that it “remain[ed] controversial.” Id. at ¶ 13. Nonetheless, we found it

unnecessary “to reevaluate Sheward,” because our conclusion that its doctrine did

not apply to cases filed in common pleas courts made it unnecessary for us to do

so. Id.

{¶ 19} We went further in State ex rel. Food & Water Watch v. State, 2018-

Ohio-555. In that case, we observed that Sheward “essentially allows this court to

engage in policy-making by ruling on the legislation of the General Assembly in

cases that lack an injured party, i.e., a party that can establish traditional standing.”

Id. at ¶ 30. Sheward, we explained, “ha[d] been heavily criticized” for allowing

issues of great interest to the public to be adjudicated without standing, resulting in

“‘“political opportunism, allowing the majority to invalidate a disfavored law using

a questionable approach.”‘ ” Id. at ¶ 28, quoting Ohio AFL-CIO at ¶ 62 (Moyer,

C.J., dissenting), quoting Tracy, Ohio ex rel. Ohio Academy of Trial Lawyers v.

Sheward: The End Must Justify the Means, 27 N.Ky.L.Rev. 883, 885 (2000). And

we identified as “perhaps a more egregious and problematic abuse” the fact that the

doctrine “permits this court to issue opinions in cases in which there has been no

injury, resulting in advisory opinions, which long-standing Ohio law prohibits this

court from issuing.” Id. at ¶ 29, citing Fortner, 22 Ohio St.2d at 14.

{¶ 20} In the end, though, we stopped just shy of overruling Sheward in

Food & Water Watch. We characterized “any authority provided by Sheward” to

be, “at best, questionable.” Id. at ¶ 30. And, we observed, “[t]his court has not

granted a public-right-doctrine exception to standing pursuant to Sheward in the

past 15 years, and we decline to do so today.” Id. at ¶ 31. But rather than directly

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overrule Sheward, we said, “Even assuming that this court would still grant a party

a public-right-doctrine exception to standing in the appropriate ‘rare and

extraordinary case,’ [the relator] ha[d] not met its burden to demonstrate that this

case is . . . worthy of the exception.” (Emphasis added.) Id.

{¶ 21} There is nothing good that comes from pretending that Sheward is

still good law. Not only is Sheward’s public-right standing contrary to our well-

established principles, but the content of the doctrine is so vague and amorphous as

to make principled judicial application of the doctrine nearly impossible. How is a

court to determine when something is of such “great importance and interest to the

public,” Sheward at ¶ 33, that it should allow parties to bypass the standing

requirement and other normal judicial procedures? On what basis is tort reform of

such public importance but not state economic-development policy? Compare

Sheward, 1999-Ohio-123, with ProgressOhio.org, Inc., 2014-Ohio-2382. Why are

challenges to worker’s compensation reforms of sufficient importance to ignore the

standing requirement, but not the protection of the environment? Compare Ohio

AFL-CIO, 2002-Ohio-6717, with Food & Water Watch, 2018-Ohio-555. Because

the “public-rights exception has no set parameters . . . it [is] nearly impossible to

apply.” Elia, 86 U.Cin.L.Rev. at 1039. Indeed, the continued existence of the

doctrine in our caselaw invites judges to engage in standardless policymaking.

{¶ 22} Because we have not overruled Sheward, we have had to jump

through hoops to avoid its application. In some cases, we have dismissed its

application with little more than a sentence or two. See, e.g., State ex rel. Leslie v.

Ohio Hous. Fin. Agency, 2005-Ohio-1508, ¶ 47. In other cases, we have attempted

to draw factual distinctions to avoid following its doctrine. See, e.g., State ex rel.

Ullmann v. Husted, 2016-Ohio-5584, ¶ 9-14 (lead opinion); State ex rel. Ohio

Stands Up!, Inc. v. DeWine, 2021-Ohio-4382, ¶ 8. And sometimes we have decided

not to consider it at all. See, e.g., Ohioans for Concealed Carry, Inc. v. Columbus,

2020-Ohio-6724, ¶ 8, fn. 1. But while Sheward and its public-right doctrine have

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seemed all but dead, they have clung to life. See State ex rel. Walgate v. Kasich,

2016-Ohio-1176, ¶ 53 (Pfeifer, J., concurring in part and dissenting in part) (“As

far as I can tell, public-right standing continues to exist in Ohio. But this court

continues to treat this form of standing, and the litigants who rely on it,

dismissively.” [citation omitted]); Ullmann at ¶ 16 (O’Neill, J., dissenting) (“I

would hold that [the relator] has standing under the public-right doctrine”).

{¶ 23} The Sheward public-right doctrine has become this court’s “ghoul in

a late-night horror movie that repeatedly sits up in its grave and shuffles abroad,”

Lamb’s Chapel v. Ctr. Moriches Union Free School Dist., 508 U.S. 384, 398 (1993)

(Scalia, J., concurring in the judgment). It is time we consign it to the fate it

deserves. We therefore overrule State ex rel. Ohio Academy of Trial Lawyers v.

Sheward, 1999-Ohio-123, and hold that neither Martens nor future litigants may

rely on it to bypass our well-established standing requirement.

C. Martens has not established taxpayer standing

{¶ 24} Martens also makes a vague claim that he is entitled to “taxpayer

standing.” Under Ohio’s taxpayer-lawsuit provisions, a taxpayer may file an action

on “behalf of a municipal corporation,” R.C. 733.59, or in “the name of the state,”

R.C. 309.13, if the government fails to pursue a lawsuit after a written request from

the taxpayer. In such cases, the standing requirement is satisfied because the

municipal corporation or the state is the actual party in interest and the General

Assembly has explicitly given the taxpayer authority to sue on the government’s

behalf. Ohio has recognized such actions for over 150 years. See Act of Mar. 3,

1860, Section 13, 57 Ohio Laws 16, 18 (precursor to R.C. 733.59). “In the absence

of statutory authority, however, a taxpayer lacks legal capacity to institute a

taxpayer action unless he has some special interest in the public funds at issue.”

State ex rel. Dann v. Taft, 2006-Ohio-2947, ¶ 13, citing Masterson at paragraph one

of the syllabus.

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{¶ 25} Martens argues that he has taxpayer standing because he has alleged

that the courts in Hancock County are illegally expending money when they hear

cases that they lack jurisdiction over. But he has not asserted any special interest

in the courts’ funds. Nor has he cited any statutory authority authorizing him to

bring a taxpayer suit in this case. Therefore, even if Martens could show that the

courts were illegally expending funds, he has not established taxpayer standing.

{¶ 26} Martens also suggests that he would not be required to establish

standing if we determined that the Findlay Municipal Court and the Hancock

County Court of Common Pleas patently and unambiguously lacked jurisdiction

over municipal-income-tax cases. But he cites no authority to support that

suggestion, and we reject such a holding. As explained above, a party must always

establish standing before seeking relief in court. Because Martens lacked standing

to bring his mandamus claim, we affirm the Third District’s judgment.

III. CONCLUSION

{¶ 27} Because Martens lacked standing to bring this action, the Third

District Court of Appeals correctly granted the motion to dismiss the complaint.

We affirm its judgment.

Motion for oral argument denied

and judgment affirmed.

__________________

BRUNNER, J., joined by DONNELLY and STEWART, JJ., concurring in

judgment only.

{¶ 28} I agree with the majority’s conclusion in Part II(C) of its opinion that

relator-appellant, George Martens, lacked standing to file the complaint in this case.

Regarding the majority’s holding in Part II(B), however, I disagree with its decision

to use this case as a vehicle to overrule our decision in State ex rel. Ohio Academy

of Trial Lawyers v. Sheward, 1999-Ohio-123. I recognize that the reasoning of

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Sheward has been criticized, and I do not take a position on those criticisms today.

Instead, I write separately to explain why it is not proper for this court to reconsider

Sheward in this case.

{¶ 29} To start, there is no urgent need to consider whether to overrule

Sheward here. Martens’s claims—challenging the procedure by which two courts

decide local tax cases—fall far outside the public-rights exception to the personal-

injury requirement for standing established in Sheward. Moreover, there is no

indication that the exception is causing problems in courts across the State. We

have made clear that the exception does not apply in cases originating in a court of

common pleas. See ProgressOhio.org, Inc. v. JobsOhio, 2014-Ohio-2382, ¶ 10-

11. And even in cases in which Sheward could apply—i.e., original actions filed

in this court—we have not found the exception applicable in a single decision since

2002.

{¶ 30} The majority complains that Sheward has nonetheless required us to

“jump through hoops to avoid its application.” Majority opinion, ¶ 22. But as the

majority acknowledges, when presented with an argument based on Sheward, we

repeatedly have “dismissed its application with little more than a sentence or two”

or “decided not to consider it at all.” Majority opinion at ¶ 22. Thus, Sheward does

not seem an egregious hindrance that compels the drastic measure of overruling

legal precedent.

{¶ 31} Further, by overruling Sheward, the majority departs from our

established practice before overruling legal precedent. See, e.g., State ex rel. Dillon

v. Indus. Comm., 2024-Ohio-744, ¶ 20 (Brunner, J., dissenting) (discussing court’s

practice of adhering to stare decisis except when factors identified in Westfield Ins.

Co. v. Galatis, 2003-Ohio-5849, ¶ 48, are present). First, the court of appeals’

decision does not mention Sheward, nor have we been asked to overrule it by

respondents-appellees, the Hancock County Common Pleas and Findlay Municipal

Courts. As a result, the materials before us do not provide us with the benefit of

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any discussion of the merits of the public-rights exception. Although we should

ordinarily ask for supplemental briefing from the parties before deciding significant

issues not raised by the parties, see In re Application for Correction of Birth Record

of Adelaide, 2024-Ohio-5393, ¶ 6 (Fischer, J., for affirming the court of appeals’

judgment) (collecting cases), the majority declines to do so here, and worse, when

the relator is proceeding pro se and is not an attorney. This separate opinion is a

call for judicial restraint and respect for the bedrock judicial principle of stare

decisis.

{¶ 32} The majority opinion’s discussion of Sheward is woefully

deficient—to the point of being affirmatively misleading. It states that the standing

requirement is “deeply rooted in our caselaw” and that Sheward “abruptly

departed” from that caselaw and is “an aberration.” Majority opinion at ¶ 11, 13,

and 3. With this sweeping generalization, the majority ignores much of the analysis

in Sheward, in which the court reviewed the history of the judicial power in Ohio,

hearkening back to the genesis of the Ohio Constitution in 1802. See Sheward,

1999-Ohio-123, at ¶ 11-26. The Sheward court also discussed precedent—

reviewing caselaw from a period of well over 100 years—during which this court

had “taken the position that when the issues sought to be litigated are of great

importance and interest to the public, they may be resolved in a form of action that

involves no rights or obligations peculiar to named parties.” Id. at ¶ 33-40

(discussing In re Assignment of Judges to Hold Dist. Courts, 34 Ohio St. 431

(1878); State v. Brown, 38 Ohio St. 344 (1882); State ex rel. Meyer v. Henderson,

38 Ohio St. 644 (1883); State ex rel. Trauger v. Nash, 66 Ohio St. 612 (1902); and

State ex rel. Newell v. Brown, 162 Ohio St. 147 (1954)).

{¶ 33} It is paradoxical and absurd in this context for the majority to

conclude that Sheward “abruptly departed” from “deeply rooted” caselaw while in

the same opinion noting that Sheward relied on caselaw—namely, State v. Brown—

that the majority reaffirms, even if declaring that it exists at “the outer bounds of

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the standing requirement,” majority opinion at ¶ 12. It is disingenuous to overrule

as an “aberration” a decision that squarely relies on what is “deeply rooted” in the

law and then to call the deeply rooted law an outlier. This type of analysis amounts

to results-oriented jurisprudence that is more legislative than judicial in its tenor.

We are not the legislature.

{¶ 34} Moreover, the majority opinion erects a proverbial straw man when

it suggests that Sheward applies whenever the law being challenged concerns a

sufficiently important subject matter. See majority opinion at ¶ 22. This limitation

obscures the extraordinary circumstances that gave rise to Sheward: After we held

a number of laws governing civil tort actions invalid because they violated the Ohio

Constitution or conflicted with the Civil Rules, the General Assembly enacted

Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867 (“H.B. 350”), which

simultaneously reenacted provisions we had struck down and expressly declared

them constitutional and lawful, contrary to our prior holdings. See Sheward at ¶ 9-

10 and fn. 7; id. at ¶ 47-99. As the majority put it in Sheward, H.B. 350 was “no

ordinary piece of legislation that happen[ed] to inadvertently cross the boundaries

of legislative authority. The General Assembly ha[d] circumvented our mandates,

while attempting to establish itself as the final arbiter of the validity of its own

legislation.” Id. at ¶ 96.

{¶ 35} The Sheward court, in taking the extraordinary actions of the

legislature into account, also placed a significant limitation on its holding: the court

made clear that it w[ould] entertain an action under the public-rights exception to

the personal-injury requirement only “‘“when the public injury by [the court’s]

refusal [to entertain the action] w[ould] be serious.”’” (Emphasis added.) Id.,

1999-Ohio-123, at ¶ 132, quoting Trauger, 66 Ohio St. at 616, quoting Ayres v. Bd.

of State Auds., 42 Mich. 422, 429 (1880). In his concurring opinion, Justice Pfeifer

explained why refusing to hear the case for lack of standing would have caused

great public harm: “Twenty-seven thousand tort cases were filed in Ohio in 1998,”

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and H.B. 350 placed “a global cloud over most of the cases” as well as over cases

arising in the future. Id. at ¶ 173 (Pfeifer, J., concurring). Hearing the challenges

promptly was therefore necessary to “prevent gridlock of our justice system.” Id.

at ¶ 175 (Pfeifer, J., concurring). Today’s majority opinion disregards this

limitation.

{¶ 36} I recognize that there are strong arguments in favor of overruling

Sheward, but it is highly inappropriate—both procedurally and substantively—to

overrule Sheward under the circumstances presented in this case. The majority

seems to have accomplished this as if by using an intercontinental ballistic missile

to obliterate an isolated cache of enemy armaments. And it does so by presenting

a one-sided view of Sheward without the benefit of a serious and studied discussion

or adverse points of view.

{¶ 37} Among other things, a more thorough consideration of the relevant

issues is warranted because the standing requirement under Ohio law is different

from its counterpart in the federal system—and at a fundamental level. In federal

courts, standing is grounded in the Cases and Controversies Clause of the United

States Constitution. See U.S. Const., art. III, § 2. But the Ohio Constitution does

not contain the same language as the federal Constitution. So unless we proceed

with more deliberation than is apparent here, there is the real risk that we are simply

engaging in “lockstepping”—a “‘reflexive imitation of the federal courts’

interpretation of the Federal Constitution,’ ” State ex rel. Cincinnati Enquirer v.

Bloom, 2024-Ohio-5029, ¶ 21, quoting Sutton, 51 Imperfect Solutions: States and

the Making of American Constitutional Law 174 (2018).

{¶ 38} With broad pronouncements about what is “deeply rooted” in the

law and what is an “aberration” but without considering evidence to the contrary or

seeking briefing by the parties, it is evident that the majority has fallen prey to an

apparent lust for the more recent trends of re-forming federal constitutional

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SUPREME COURT OF OHIO

jurisprudence. This is apparent from the pithy quote from a famous federal jurist

appearing in the majority opinion.

{¶ 39} I believe that this court and the public would benefit from the

exercise of patience and restraint, traits often attributed to the judicial branch but

clearly not reflected in today’s majority opinion. The question whether it is

necessary and prudent to overrule Sheward should be reserved for a more

appropriate case in which the issues may be far more fully and fairly heard than in

a pro se case with little adversarial argument. Moreover, the majority’s

rationalizations for overruling Sheward are insufficient scaffolding to support that

action. Simply stated, the majority opinion comes across as sneaky and strained. I

therefore concur in judgment only.

__________________

George Martens, pro se.

Montgomery Jonson, L.L.P., Linda L. Woeber, and Cooper D. Bowen, for

appellees.

__________________

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