Commentary Forum: Mark Luedtke 4/26/11

Kasich Counting on Partisan Judges

By Mark Luedtke

Mark Luedtke

I always smile when Supreme Court decisions break along party lines as they do for nearly every significant decision. An observer from Mars might think we have two different U.S. Constitutions, one for Republicans and another for Democrats. The reality is, justices don’t care what the Constitution says.
Judges don’t make it to the pinnacle of their profession without carrying water for their party and its special interests. As with all government professions, the most corrupt judges rise to the top. As soon as the Constitution was ratified, justices created tortured arguments to break the law. Those decisions became launching pads for future judges to disobey the law ever more excessively. Constitutional law today has virtually no relationship to the actual

Constitution. Constitutional law is a fiction created by power-hungry men and women over the centuries so they wouldn’t have their ambitions or the ambitions of their cronies restricted by ink on a page.
The same is true at the state level, and Governor Kasich is counting on it. ProgressOhio claims seven violations of the Ohio constitution by JobsOhio. Several look spurious, but since they’re filing suit anyway, it’s in their interest to make multiple claims. The more they make, the more likely they are to win one.
The first two claims challenge the law’s requirement that any challenge be filed directly with the Supreme Court within 60 days. But the constitution is clear, “[Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be provided by law.” Elsewhere the constitution allows law to set jurisdiction for courts. The JobsOhio law does that. Even ProgressOhio must believe these provisions are constitutional because it filed directly with the Ohio Supreme Court within 60 days as required by the law.
While these requirements appear to be constitutional, they are unusual. It’s pretty easy to figure out why Kasich wanted them. First, six of the seven Ohio Supreme Court Justices are Republicans. This gives Kasich a powerful, partisan advantage at the Supreme Court he doesn’t enjoy in lower courts. Second, because the case had to be filed so quickly and bypassed the usual, months-long appeals process, the governor guarantees the Supreme Court will hear this case during his honeymoon period, magnifying his partisan advantage.
And he’s going to need it because the rest of the claims appear to have merit. The constitution forbids the governor from holding any other position in the government, but the law makes him the head of JobsOhio. JobsOhio is set up as a private entity, but it’s hard to make the case it’s truly private when it’s created by legislation and funded by the government.

This setup creates more problems for Kasich. The constitution reads, “The General Assembly shall pass no special act conferring corporate powers.” Another section of the constitution forbids the government from investing in or co-mingling money with a private entity. ProgressOhio has challenged JobsOhio on both. It looks like Kasich has trapped himself in a catch-22. If JobsOhio is a private company, it violates these provisions. If it’s a government agency, it violates the previous one.
ProgressOhio has also challenged JobsOhio for its debt liabilities and appropriation longer than two years. Both of these challenges stem from the independence of JobsOhio so are related to the last two challenges.
Partisan control of the Supreme Court is no guarantee Kasich will win this battle because judges rule in their personal interest first and foremost even when at odds with the interests of their party. The language of JobsOhio is convoluted to give the judges cover as described by co-plaintiff Democrat Representative Dennis Murray, “Through its tortured language, this bill makes a mockery of public records laws through its Alice in Wonderland assertions that a government function is not really a government function and that a government agency exercising the powers of government is not really a government agency.” Regardless of language, it’s hard to imagine any judge profiting by ignoring Kasich’s catch-22. One possible way to remove that catch-22 is for Republicans to change the provision making the governor the head of JobsOhio.
But the bigger question here is whether it makes sense for the government to do any so-called economic development at all. describes Kasich’s vision in a nutshell, “Kasich has said JobsOhio is intended, in part, to help put the state in the business of being a venture capitalist. Instead of just offering tax breaks to lure companies to Ohio, JobsOhio could lend funds in return for the state gaining equity in the companies it helps.” Both JobsOhio and the Department of Development suffer from the fatal conceit of central planning: that a handful of central planners have more knowledge about the talents, skills, strengths, weaknesses and desires of millions of individuals than the individuals themselves. To fix Ohio’s economic problems, we should abolish both the Department of Development and JobsOhio and allow the people to keep their own money and use it to improve their lives as they see fit. If we reduce the burden of government, existing Ohio business will thrive and new businesses will flow into the state.

Mark Luedtke is an electrical engineer with a degree from the University of Cincinnati and currently works for a Dayton attorney. He can be reached at

Reach DCP freelance writer Mark Luedtke at

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