Cronin v. Governor of Ohio , 2022 Ohio 829 ( 2022 )

[Cite as Cronin v. Governor of Ohio, 2022-Ohio-829.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
KEVIN CRONIN, :
Plaintiff-Appellant, :
No. 110802
v. :
GOVERNOR OF OHIO, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 17, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-947161
Appearances:
Kevin H. Cronin, pro se.
Dave Yost, Ohio Attorney General, and Iris Jin, Julie M.
Pfeiffer, and Heather L. Buchanan, Assistant Attorneys
General, for appellees.
CORNELIUS J. O’SULLIVAN, JR., J.:
Plaintiff-appellant, Kevin Cronin (“appellant”), appeals from the trial
court’s August 26, 2021 judgment granting the motion to dismiss of defendants-
appellees, the governor of Ohio and the Ohio attorney general (collectively “the
defendants”)1 due to lack of standing. After a thorough review of the law and facts,
we affirm.
Procedural History
In May 2021, appellant filed a “complaint for injury, with motion
seeking an emergency temporary restraining order” against the defendants.
Appellant sought “an Emergency Temporary Restraining Order barring the
Governor from implementing [Senate Bill] 22 [(‘S.B. 22’)], a law to limit executive
authority in acting under an emergency declaration.” Complaint, pg. 1. According
to appellant’s complaint, “[t]he legislation violates the Ohio Constitution in
impeding lawful executive action and impermissibly appropriates executive
authority for the legislative branch of government, placing the health and safety of
Ohio residents at higher risk.” Id.In June 2021, the defendants filed a combined motion to dismiss
appellant’s complaint and brief in opposition to his motion for a temporary
restraining order. The motion to dismiss was made under Civ.R. 12(B)(1) and (6).
Appellant filed a brief in opposition to the motion.
In June 2021, appellant filed a motion for preliminary injunction,
which the defendants opposed.
In August 2021, the trial court granted the defendants’ motion to
dismiss on the ground that appellant failed to demonstrate that he had standing to
1 At all relevant times, the Ohio governor was Mike DeWine and the Ohio attorney
general was David Yost.
challenge S.B. 22. Appellant appeals, raising the following assignment of error for
our review: “The trial court erred in failing to address the full scope of injury
imposed by the unconstitutional SB 22 regime and the denial of standing to
challenge SB 22.”
Factual Background
S.B. 22 was introduced in the Ohio General Assembly in January 2021.
It was passed by both the Ohio House and Senate. In March 2021, Governor DeWine
vetoed it pursuant to his authority under the Ohio Constitution. See Ohio
Constitution, Article II, Section 16. The General Assembly then overrode Governor
DeWine’s veto and thereafter S.B. 22 became law in Ohio. See id.In part, S.B. 22: (1) limits the duration of a state of emergency issued
by the governor to 90 days, permits the General Assembly to terminate the state of
emergency after 30 days, and allows the General Assembly to extend a state of
emergency by 60 day intervals (R.C. 107.42 (A)-(F)); (2) permits the General
Assembly to rescind orders and rules in response to a state of emergency (R.C.
101.36 (A)-(C)); (3) requires the governor and the Ohio Department of Health to
report to the Ohio senate president and the Ohio speaker of the house any actions
taken in response to the state of emergency (R.C. 107.43(B)); (4) establishes the
“Ohio health oversight and advisory committee,” and authorizes the committee to
oversee actions taken by the governor, Department of Health, or any other agency
in response to a state of emergency or for the prevention of the spread of contagious
or infectious diseases (R.C. 103.65 (A)-(F); R.C. 103.651); and (5) restricts a local
board of health’s authority to issue quarantine and isolation orders to specific
individuals or businesses who have been medically diagnosed with a disease or have
come in contact with a disease and prohibits orders affecting a class of persons (R.C.
3707.11; R.C. 3707.54).
According to appellant’s complaint he has “Severe Aplastic Anemia, an
immune-compromised blood disorder.” Complaint, at ¶ 2. He alleged that the
provisions of S.B. 22 will impede his health and safety, as well as the public’s health
and safety because it will expose him and the public “to sickness, risk of serious/long
term health impairment or death, lost work, lost education and entertainment
opportunities and additional costs of medical care.” Id. at ¶ 15.
Law and Analysis
Civ.R. 12(B) Motion to Dismiss
Defendants’ motion to dismiss stated that it was being made under
Civ.R. 12(B)(1) and (6). The substance of the motion does not address Civ.R.
12(B)(1), however. Civ.R. 12(B)(1) provides for the dismissal of a complaint where
the trial court lacks jurisdiction over the subject matter of the litigation. The “subject
matter jurisdiction of a court is a court’s power to hear and decide a case upon its
merits.” Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph
one of the syllabus.
“Although standing is required in order to invoke the jurisdiction of
the court over a particular action * * *, lack of standing does not affect the subject-
matter jurisdiction of a court of common pleas.” Bank of Am., N.A. v. Kuchta, 141
Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, paragraph three of the syllabus.
Because lack of standing does not affect the court’s subject-matter jurisdiction, lack
of standing is not a matter subject to dismissal under Civ.R. 12(B)(1). PNC Bank,
Natl. Assn. v. Botts, 10th Dist. Franklin No. 12AP-256, 2012-Ohio-5383, ¶ 22.
However, “a lack of standing may properly be raised in a motion to
dismiss premised on Civ.R. 12(B)(6).” (Citations omitted.) Revocable Living Trust
of Mandel v. Lake Erie Util. Co., 8th Dist. Cuyahoga No. 97859, 2012-Ohio-5718,
¶ 11. We, therefore, limit our discussion to whether the trial court properly granted
the defendants’ motion to dismiss under Civ.R. 12(B)(6).
Appellate review of an order dismissing a complaint for failure to state
a for relief is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-
4362, 814 N.E.2d 44, ¶ 5. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we
must accept the material allegations of the complaint as true and make all
reasonable inferences in favor of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio
St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6. However, “unsupported
conclusions of a complaint are not considered admitted * * * and are not sufficient
to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45 Ohio St.3d
324, 324, 544 N.E.2d 639 (1989). For a defendant to prevail on the motion, it must
appear from the face of the complaint that the plaintiff can prove no set of facts that
would justify a court in granting relief. O’Brien v. Univ. Comm. Tenants Union, Inc.,
42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
Applying a de novo standard of review, we turn to the issue on appeal—
whether appellant’s complaint established his standing.
Standing
“A preliminary inquiry in all legal claims is the issue of standing.”
Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858
N.E.2d 330, ¶ 22. Standing is a constitutionally imposed jurisdictional requirement.
ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13
N.E.3d 1101, ¶ 11. Ohio Constitution, Article IV, Section 4(B) provides that common
pleas courts “shall have such original jurisdiction over all justiciable matters.” “A
matter is justiciable only if the complaining party has standing to sue.”
ProgressOhio.org at id., citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134
Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214.
In Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975
N.E.2d 977, the Supreme Court of Ohio stated the requirements for standing as
follows:
To succeed in establishing standing, plaintiffs must show that they
suffered (1) an injury that is (2) fairly traceable to the defendant’s
allegedly unlawful conduct, and (3) likely to be redressed by the
requested relief. These three factors — injury, causation, and
redressability — constitute “the irreducible constitutional minimum of
standing.”
Id. at ¶ 22, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992).
Appellant’s allegations do not meet any of the three requirements.
Injury
“[T]he injury must be concrete and not simply abstract or suspected”
to be compensable. Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643
N.E.2d 1088 (1994). Further, an injury that is borne by the population in general,
and which does not affect the plaintiff in particular, is not sufficient to confer
standing. State ex rel. Walgate v. Kasich, 2013-Ohio-946, 989 N.E.2d 140, ¶ 11
(10th Dist.), rev’d on other grounds, 147 Ohio St.3d 1, 2016-Ohio-1176, 59 N.E. 3d
1240. To show standing, a private litigant:
“[M]ust generally show that he or she has suffered or is threatened with
direct and concrete injury in a manner or degree different from that
suffered by the public in general, that the law in question has caused
the injury, and that the relief requested will redress the injury.”
Bowers v. Ohio State Dental Bd., 142 Ohio App.3d 376, 380, 755 N.E.2d 948 (10th
Dist.2001), quoting State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86
Ohio St.3d 451, 469-70, 715 N.E.2d 1062 (1999).
Appellant’s complaint alleged that his and the public’s health and
safety were at risk by implementation of S.B. 22. We are not unsympathetic to the
genuine health concerns appellant and others suffer. However, appellant did not
allege that he had suffered or was threatened with “direct and concrete injury,” or
that his alleged injury or threat of injury was different from any alleged injury the
public suffered or was threatened with.
Rather than any allegation of a direct and concrete injury, appellant
repeatedly made speculative allegations. He alleged the following for example: (1)
“The Governor’s Orders have created safety and stability in addressing [COVID-19],
which could be challenged under SB 22” (Complaint, ¶ 2); (2) “Among other
restrictions, SB 22 provides that the Governor’s emergency orders, including the
current covid19 health orders, may be forced to expire or be rescinded by the
legislature” (Id. at ¶ 7); (3) “The implementation of SB 22 places plaintiff and [the]
public at significant health risk, facing the legislature’s cancellation of the
Governor’s protective health directives, which could lead to” various alleged
negative consequences (Id. at ¶ 14); and (4) “SB 22 threatens to cancel emergency
measures of the Governor and health advisors that have protected plaintiff and the
public, potentially proposing wild swing in policy and emergency response” (Id. at
¶ 16) (All emphasis added.) These speculative statements of possible future harm
do not confer standing to appellant.
Moreover, appellant failed to differentiate his alleged harm from that
suffered by the public in general. Rather, appellant’s alleged harm and the public’s
alleged harm are the same.
This case is akin to State ex rel. Walgate, 2013-Ohio-946, 989 N.E.2d
140. In State ex rel. Walgate, the Supreme Court of Ohio held that plaintiffs who
challenged various gambling laws based on the alleged negative effects of gambling
on them and their communities lacked standing to sue because they failed to allege
any direct, concrete injuries outside those affecting the general public. Id. at ¶ 20-
22. The Supreme Court found that the negative effects of gambling “do not
constitute concrete injuries to appellants that are different in manner or degree from
those caused to the general public, were not caused by the state’s conduct, and
cannot be redressed by the requested relief.” Id. at ¶ 22.
Likewise, in this case, appellant’s interest in health and safety is the
same interest shared by the general public. Because appellant failed to allege that
he suffered a direct and concrete injury different from that allegedly suffered by the
public in general, he has no standing to bring this action.
Causation
Appellant’s complaint failed to allege causation as well. Appellant
needed to allege that the defendants’ conduct was “fairly traceable to [their]
allegedly unlawful conduct.” Moore, 133 Ohio St.3d 55, 2012-Ohio-3897, 975
N.E.2d 977, at ¶ 22. Rather than alleging that Governor DeWine engaged in
unlawful conduct, appellant’s complaint did the opposite — it complimented
Governor DeWine’s actions relative to the Covid-19 pandemic. See, e.g., Complaint
at ¶ 2 (alleging that appellant “utilizes and benefits from health services and public
safety and health directives issued under the Governor’s emergency declarations to
protect public health and safety during the [COVID-19], global health epidemic” and
that the “Governor’s Orders have created safety and stability in addressing [COVID-
19].”). Appellant failed to allege that any action taken by Governor DeWine caused
him injury.
Appellant likewise failed to allege that any action taken by Attorney
General Yost harmed him. In regard to Attorney General Yost, appellant alleged
that he was “authorized to represent the state of Ohio in legal matters and in
challenges to the constitutionality of enacted laws, pursuant to Ohio Rev. Code
§2721.12,” and that he held “responsibility to defend the constitutionality of enacted
laws, pursuant to Ohio Rev. Code §2721.12.”2 Complaint at ¶ 4, 12.
Redressability
Redressability means that a plaintiff is “likely to be redressed by the
requested relief.” Moore, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, at
¶ 22. Appellant’s request for relief was for the trial court to “impose a restraining
order to prohibit the Governor from executing and implementing the SB 22
requirements.” Complaint, at request for relief. The governor would not have been
constitutionally able to do that. After the Ohio House and Senate passed the bill,
Governor DeWine vetoed it. The General Assembly then overrode Governor
DeWine’s veto, resulting in it “becom[ing] law notwithstanding the objections of the
governor.” Ohio Constitution, Article II, Section 16.
On this record, appellant failed to demonstrate the threshold
requirement of standing — that is, injury, causation, and redressability. The trial
court therefore did not err in granting the defendants’ motion to dismiss.
Exceptions to an Individual Plaintiff’s Standing
Public-Right Standing and Taxpayer Standing
Appellant contends that in addition to having traditional standing, he
also had standing under the concepts of public-right standing and taxpayer
2 R.C. 2721.12(A) provides that “if any statute or the ordinance or franchise is
alleged to be unconstitutional, the attorney general also shall be served with a copy of the
complaint in the action or proceeding and shall be heard.”
standing. Appellant failed to allege that he had either category of standing at the
trial-court level. Parties cannot raise any new issues for the first time on appeal, and
the failure to raise an issue at the trial level waives it on appeal. Gangale v. Bur. of
Motor Vehicles, 10th Dist. Franklin No. 01AP-1406, 2002-Ohio-2936, ¶ 58. Even if
appellant had raised public-right standing and taxpayer standing at the trial-court
level, his contention of standing on those grounds would have failed.
The public-right doctrine presents “an exception to the personal-
injury requirement of standing.” Sheward, 86 Ohio St.3d at 503, 715 N.E.2d 1062.
The doctrine provides 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 471. To succeed
in bringing a public-right case, a litigant must allege “rare and extraordinary” issues
that threaten serious public injury. Id. at 504. Not all allegedly illegal or
unconstitutional government actions rise to this level of significance. Id. at 503.
Public-right standing is available only in mandamus actions “to procure the
enforcement or protection of a public right.” Id. at paragraph one of the syllabus.
Appellant’s action was not brought as a mandamus action. It also did
not seek to protect or enforce a public right; rather his action was brought as a
“Complaint for Injury,” wherein he challenged the constitutionality of S.B. 22.
Public-right standing does not apply to this case.
Taxpayer standing applies when “public officers attempt to make an
illegal expenditure of public money, or to create an illegal debt, which [a taxpayer],
in common with other property holders of the taxing district, may otherwise be
compelled to pay.” State ex rel. Masterson v. Ohio State Racing Comm., 162 Ohio
St. 366, 123 N.E.2d 1 (1954). “In the absence of statutory authority, * * * a taxpayer
lacks legal capacity to institute a taxpayer action unless he [or she] has some special
interest in the public funds at issue.” State ex rel. Dann v. Taft, 110 Ohio St.3d 1,
2006-Ohio-2947, 850 N.E.2d 27, ¶ 13.
Appellant did not challenge expenditures to or from any fund. He also
did not seek to compel any relief from any fund. Taxpayer funding standing is
wholly inapplicable to this case.
In view of the above, the public- and taxpayer-standing exceptions to
personal-injury standing did not apply in this case.
Conclusion
Appellant failed to demonstrate that (1) he had a direct and concrete
injury due to S.B. 22, (2) any alleged harm he suffered or will suffer are because of
S.B. 22, and (3) his alleged harm would be redressed by his requested relief. On this
record, he failed to establish that he has standing to bring his action. The doctrines
of public-right standing and taxpayer standing do not confer standing to appellant.
The trial court properly granted the defendants’ motion to dismiss under Civ.R.
12(B)(6) for failure to state a claim on which relief could be granted. Appellant’s sole
assignment of error is without merit and hereby overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
CORNELIUS J. O’SULLIVAN, JR., JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
EILEEN T. GALLAGHER, J., CONCUR