[Cite as Cronin v. Governor of Ohio,

.]

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.”

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

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,

,

(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,

,

,

, 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,

, ¶ 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,

. 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,

, 2004-Ohio-

4362,

, ¶ 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.,

,

,

, ¶ 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,

,

(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.,

,

(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,

,

,

. Standing is a constitutionally imposed jurisdictional requirement.

ProgressOhio.org, Inc. v. JobsOhio,

,

,

. 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

citing Fed. Home Loan Mtge. Corp. v. Schwartzwald,

,

,

.

In Moore v. Middletown,

,

,

, 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,

,

,

(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,

,

(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,

,

, ¶ 11

(10th Dist.), rev’d on other grounds,

,

,

. 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.,

,

(10th

Dist. 2001), quoting State ex rel. Ohio Academy of Trial Lawyers v. Sheward,

,

(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,

,

. 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.

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,

,

,

. 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,

,

,

. 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,

, ¶ 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,

,

.

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.”

. To succeed

in bringing a public-right case, a litigant must allege “rare and extraordinary” issues

that threaten serious public injury.

. Not all allegedly illegal or

unconstitutional government actions rise to this level of significance.

.

Public-right standing is available only in mandamus actions “to procure the

enforcement or protection of a public right.”

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.,

,

(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,

,

,

.

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