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

ex rel. Walgate v. Kasich, Slip Opinion No. 2016-Ohio-1176.] 

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. 2016-OHIO-1176

THE STATE EX REL. WALGATE ET AL., APPELLANTS, v. KASICH, GOVERNOR,

ET AL., APPELLEES. 

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

may be cited as State ex rel. Walgate v. Kasich, Slip Opinion No. 

2016-Ohio-1176.] 

Challenges to constitutionality of Article XV, Section 6 of the Ohio Constitution, 

2009 Am.Sub.H.B. No. 1, 2010 Am.Sub.H.B. No. 519, and 2011 Sub.H.B. 

No. 277—Court of appeals’ judgment upholding dismissal of several 

plaintiffs’ claims for lack of standing affirmed—Allegations by plaintiff in 

support of equal-protection claim were sufficient to survive motion to 

dismiss for lack of standing. 

(No. 2013-0656—Submitted June 23, 2015—Decided March 24, 2016.) 

APPEAL from the Court of Appeals for Franklin County, No. 12AP-548, 

2013-Ohio-946. 

_______________________ 

 
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FRENCH, J.

{¶ 1} This action raises a variety of challenges to recently enacted 

legislation and administrative rules related to gambling in the state, both at casinos 

and at race tracks, but the questions before us involve only the existence or 

nonexistence of standing and the requirements for a trial court to dismiss a 

complaint for lack of standing. We conclude that one plaintiff-appellant has 

standing to maintain this action, but the other plaintiffs-appellants do not. 

I. Case background 

{¶ 2} This appeal involves numerous constitutional provisions, statutes, 

administrative rules, and claims. Yet because of the case’s procedural posture, only 

a limited portion of the underlying dispute is now before us. To fully understand 

the relevant issue, a brief review of the relevant law and the underlying facts is 

necessary. 

A. State constitutional provisions 

{¶ 3} Article XV, Section 6(A) of the Ohio Constitution establishes the 

General Assembly’s authority with respect to lotteries: 

The General Assembly may authorize an agency of the state 

to conduct lotteries, to sell rights to participate therein, and to award 

prizes by chance to participants, provided that the entire net 

proceeds of any such lottery are paid into a fund of the state treasury 

that shall consist solely of such proceeds and shall be used solely for 

the support of elementary, secondary, vocational, and special 

education programs as determined in appropriations made by the 

General Assembly. 

 

{¶ 4} Article XV, Section 6(C)(1) of the Ohio Constitution permits limited 

casino gambling in the state: 
January Term, 2016 

3

Casino gaming shall be authorized at four casino facilities (a 

single casino at a designated location within each of the cities of 

Cincinnati, Cleveland, and Toledo, and within Franklin County) to 

create new funding for cities, counties, public school districts, law 

enforcement, the horse racing industry and job training for Ohio’s 

workforce. 

The remaining provisions of Article XV, Section 6(C) detail other procedures 

related to casino gambling, including how casino revenue will be taxed, how that 

revenue will be distributed, how the state will oversee casino gambling, and how 

casino licenses will be obtained. 

B. Legislative enactments and administrative provisions 

{¶ 5} In 2009, pursuant to its power to authorize agencies of the state to 

conduct lotteries, the General Assembly approved 2009 Am.Sub.H.B. No. 1 (“H.B. 

1”), which authorized the Ohio Lottery Commission to operate video lottery 

terminal (“VLT”) games, and, in turn, the commission issued administrative rules 

to implement operation of VLTs. Ohio Adm.Code 3770:2-1 et seq. These rules 

limited those who could obtain licenses for VLTs to those with a permit to conduct 

horse races. Ohio Adm.Code 3770:2-3-01. 

{¶ 6} In 2010, the General Assembly enacted 2010 Am.Sub.H.B. No. 519 

(“H.B. 519”), which, in part, extended the period of time for casino operators to 

make their initial investments required by Article XV, Section 6(C)(5) of the Ohio 

Constitution. R.C. 3772.27. And in 2011, the General Assembly enacted 2011 

Sub.H.B. No. 277 (“H.B. 277”). As relevant to this appeal, H.B. 277 amended R.C. 

5751.01(F)(2)(hh) and 5753.01(D) to exclude certain amounts collected by casino 

operators from the commercial-activity tax imposed by R.C. 5751.02; amended 

R.C. 3772.01, 5751.01, and 5753.01 and enacted R.C. 3772.34 to institute changes 
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to the collection and distribution of taxes on casino revenues; and amended R.C. 

3772.27 to refine the procedure for opening and operating casino facilities. 

C. Procedural history 

{¶ 7} In October 2011, plaintiffs-appellants, Robert L. Walgate Jr., David 

P. Zanotti, the American Policy Roundtable (“Ohio Roundtable”), Sandra L. 

Walgate, Agnew Sign & Lighting, Inc. (“ASL”), Linda Agnew, Paula Bolyard, 

Jeffrey Malek, Michelle Watkin-Malek, Thomas W. Adams, and Donna J. Adams, 

filed a complaint in the Franklin County Court of Common Pleas seeking a 

declaratory judgment, injunctive relief, and a writ of mandamus. In January 2012, 

those parties, along with plaintiffs-appellants, Joe Abraham and Frederick Kinsey, 

filed an amended complaint in the case. The amended complaint named as 

defendants (appellees here) Governor John R. Kasich; the State Lottery 

Commission; the interim director and members of the State Lottery Commission; 

the Casino Control Commission; the chairman, vice chairman, executive director, 

and members of the Casino Control Commission; and Ohio Tax Commissioner 

Joseph W. Testa (collectively, “the state”). 

{¶ 8} The amended complaint raises 17 claims. The first ten claims relate 

to the constitutionality of VLTs and H.B. 1, the act that authorized them. Those 

claims allege, in part, that (1) VLT operation exceeds the state’s authority to 

conduct lotteries, (2) the lottery commission will violate the constitution by not 

conducting VLT games in their entirety, (3) the net proceeds of VLT games will be 

distributed in an unconstitutional manner, (4) allowing VLTs to be operated by 

racing facilities will violate the prohibition against the state’s financial involvement 

in private enterprise, (5) H.B. 1 violates the one-subject rule of Article II, Section 

15(D) of the Ohio Constitution, and (6) in enacting H.B. 1 the General Assembly 

failed to comply with the requirement in Article II, Section 15(C) of the Ohio 

Constitution that each House consider every bill on three different days. 
January Term, 2016 

5

{¶ 9} Claims 11 through 16 in the amended complaint challenge legislative 

actions that relate to Ohio’s four casinos, particularly H.B. 277 and H.B. 519. 

Included in these are claims that legislation pertaining to the commercial-activity 

tax, casino-license fees, and tax exclusion for promotional gaming credits, as well 

as legislation allowing for multiple casino facilities in one city and graduated 

payments of the required initial investment, exceeded the legislature’s 

constitutional authority. 

{¶ 10} The final claim in the amended complaint is that Article XV, Section 

6 of the Ohio Constitution, H.B. 1, H.B. 277, and H.B. 519 violate the Equal 

Protection Clause of the Fourteenth Amendment to the United States Constitution 

by granting a monopoly to the gaming operators whom the state approved. 

{¶ 11} Appellants sought a variety of relief in their amended complaint, 

including declarations that portions of H.B. 1, H.B. 277, and H.B. 519 violate the 

Ohio Constitution; preliminary and permanent injunctions enjoining the state from 

implementing H.B. 1; peremptory or other writs of mandamus ordering that VLTs 

be conducted solely by the state for the benefit of education programs in Ohio; 

preliminary and permanent injunctions enjoining the state from implementing 

portions of H.B. 277 and H.B. 519; peremptory or other writs of mandamus 

ordering the state to ensure that casino operators will be subject to the commercialactivity tax and the taxes and licensing fees set forth in Article XV, Section 6(C) of 

the Ohio Constitution; and a declaration that Article XV, Section 6 of the Ohio 

Constitution, H.B. 1, H.B. 277, and H.B. 519 violate the Fourteenth Amendment to 

the United States Constitution. 

{¶ 12} Motions to intervene were filed by gaming operators Raceway Park, 

Inc.; HJC/PDC Holdings, L.L.C.; Central Ohio Gaming Ventures, L.L.C.; Toledo 

Gaming Ventures, L.L.C.; Rock Ohio Caesars, L.L.C.; Rock Ohio Caesars 

Cleveland, L.L.C.; Rock Ohio Caesars Cincinnati, L.L.C.; Thistledown Racetrack, 

L.L.C.; Northfield Park Associates, L.L.C.; Lebanon Trotting Club, Inc.; MTR 
SUPREME COURT OF OHIO

6

Gaming Group, Inc.; and PNK (Ohio), L.L.C. (collectively, “gaming operators”). 

The gaming operators also filed motions for judgment on the pleadings. 

{¶ 13} The state moved the trial court to dismiss this action pursuant to 

Civ.R. 12(B)(6) for lack of standing and for failure to state a claim upon which 

relief can be granted. 

D. Trial court decision 

{¶ 14} The trial court granted the state’s motions to dismiss. It concluded 

that none of the appellants had standing either as a general citizen or as a taxpayer. 

It also determined that no appellant had standing based on his, her or its status as a 

contributor to the commercial-activity tax, as a teacher or parent of students in the 

public-school system, as an individual suffering from or related to those suffering 

from the effects of gambling addiction or as an individual desiring to be a casino 

operator in the state. In analyzing these standing claims, the trial court concluded 

that appellants had not shown that they had suffered or been threatened with direct 

or concrete injuries different from those of the general public or that the requested 

relief would redress their injuries. Because no individual member of Ohio 

Roundtable was shown to have standing, the court also concluded that Ohio 

Roundtable lacked organizational standing. After determining that appellants 

lacked standing, the trial court found that the gaming operators’ motions for 

judgment on the pleadings were moot. 

E. Court of appeals’ decision 

{¶ 15} The Tenth District Court of Appeals affirmed the trial court’s 

judgment. The Tenth District noted that appellants asserted five theories in support 

of standing: 

(1) gambling’s negative effects constitute injury in fact, (2) taxpayer 

standing based on the adverse effect to special funds, (3) standing 

due to adverse effects by diversion of funds from schools and local 
January Term, 2016 

7

governments, (4) standing under traditional public duty laws, and 

(5) standing based on Kinsey’s alleged “denial of equal treatment” 

resulting from the laws limitation of casino gambling to certain 

entities. 

2013-Ohio-946, 989 N.E.2d 140, ¶ 14 (10th Dist.). The court concluded that 

appellants had not established “private standing because they have not suffered 

[and] are not threatened with any direct and concrete injury in a manner or degree 

different from that suffered by the public in general.” Id. at ¶ 16. The court further 

concluded that appellants had not established standing under the “public right” 

exception, which allows for issues of great public importance and interest to be 

resolved in an action that involves no rights or obligations peculiar to the named 

parties, as recognized in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 

86 Ohio St.3d 451, 715 N.E.2d 1062 (1999). The Tenth District also rejected 

appellants’ argument that the trial court erred in dismissing their claims without 

allowing them to file an amended complaint to plead additional facts in support of 

standing. 

F. Issues presented on appeal 

{¶ 16} We accepted appellants’ discretionary appeal and held the case for 

our decision in ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-

Ohio-2382, 13 N.E.3d 1101. 136 Ohio St.3d 1449, 2013-Ohio-3210, 991 N.E.2d 

256. After we announced our decision in ProgressOhio.org, we granted appellees’ 

joint motion to dismiss the appeal as having been improvidently accepted as to 

proposition of law No. I,1

 140 Ohio St.3d 1412, 2014-Ohio-3785, 15 N.E.3d 881, 

and ordered briefing on the remaining three propositions: 

 

1

 The first proposition of law provided: “Ohio citizens have standing to pursue claims seeking 

enforcement of public duties by public officials under the lottery and casino provisions of the Ohio 

Constitution by reason of their interest in the execution of the laws of this state.” 
SUPREME COURT OF OHIO

8

Proposition of Law No. II: Parties whose interests are 

adversely affected by the negative effects of unconstitutional 

gambling have standing to pursue claims of violations of the lottery 

and casino provisions of the Ohio Constitution. 

Proposition of Law No. III: Parents of public school 

students and contributors to special funds for schools have standing 

to pursue claims of unconstitutional diversion of lottery proceeds 

and casino tax proceeds from education or school funds. 

Proposition of Law No. IV: In order for a court to dismiss a 

complaint for failure to state a claim for lack of standing (Civ.R. 

12(b)(6)), it must appear beyond doubt from the complaint and 

standing affidavits that the plaintiff can prove no set of facts entitling 

him to relief. In the event of such dismissal, a court must allow an 

opportunity to amend the complaint. 

II. Analysis 

{¶ 17} We begin our analysis by noting that appellants’ merit brief contains 

some arguments that extend beyond the scope of the three propositions of law on 

which we ordered briefing, most notably appellants’ assertions that they have 

shown standing based on their status as “beneficially interested” parties and that 

this court “has original jurisdiction as necessary to complete a determination of this 

cause with respect to the issue of appellants’ citizen standing to seek mandamus 

relief.” This court generally declines to address issues associated with propositions 

of law that we have declined to review and issues that appellants did not properly 

raise. See Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio 

St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 3, fn. 2. Accordingly, we confine 

our analysis to the issues we accepted for review: (1) whether appellants have 
January Term, 2016 

9

standing arising from their interests being negatively affected by gambling, (2) 

whether appellants have standing arising from their ties to public schools or 

contributions to special funds, (3) whether Kinsey sufficiently alleged standing to 

raise his equal-protection challenge, and (4) whether a trial court has a duty to allow 

plaintiffs an opportunity to amend a complaint before dismissing a case for failure 

to show standing. 

A. Standing generally 

{¶ 18} “It is well established that before an Ohio court can consider the 

merits of a legal claim, the person seeking relief must establish standing to sue.” 

Sheward, 86 Ohio St.3d at 469, 715 N.E.2d 1062, citing Ohio Contrs. Assn. v. 

Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994). “The essence of the 

doctrine of standing is whether the party seeking relief has ‘alleged such a personal 

stake in the outcome of the controversy as to assure that concrete adverseness which 

sharpens the presentation of issues upon which the court so largely depends for 

illumination.’ ” Racing Guild of Ohio, Local 304 v. Ohio State Racing Comm., 28 

Ohio St.3d 317, 321, 503 N.E.2d 1025 (1986), quoting Baker v. Carr, 369 U.S. 186, 

204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Under traditional standing principles, a 

plaintiff must show, at a minimum, that he has 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.’ ” ProgressOhio.org, Inc., 139 Ohio St.3d 

520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7, quoting Moore v. Middletown, 133 

Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. For common-law standing, 

a party wishing to sue must have a “direct, personal stake” in the outcome of the 

case; “ideological opposition to a program or legislative enactment is not enough.” 

Id. at ¶ 1. 

{¶ 19} Absent statutory authority, a taxpayer lacks standing “to institute an 

action to enjoin the expenditure of public funds unless he has some special interest 

therein by reason of which his own property rights are placed in jeopardy.” State 
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10 

ex rel. Masterson v. Ohio State Racing Comm., 162 Ohio St. 366, 123 N.E.2d 1 

(1954), paragraph one of the syllabus. “In other words, private citizens may not 

restrain official acts when they fail to allege and prove damage to themselves 

different in character from that sustained by the public generally.” Id. at 368, citing 

39 Ohio Jurisprudence, Section 12, at 22, and 52 American Jurisprudence, Section 

3, at 3. A plaintiff does not have standing to challenge expenditures from the 

general revenue fund simply based upon the plaintiff’s contributions to the general 

revenue fund as a taxpayer. Gildner v. Accenture, L.L.P., 10th Dist. Franklin No. 

09AP-167, 2009-Ohio-5335, ¶ 20. 

B. Alleged standing arising from the effects of gambling 

{¶ 20} Appellants argue that Robert Walgate Jr., Sandra Walgate, 

Abraham, Zanotti, and Ohio Roundtable have standing on the ground that 

unconstitutional gambling adversely affects them, their communities, and Ohio 

Roundtable’s members. Specifically, they assert that Robert Walgate Jr. is a 

recovering gambling addict whose addiction has caused great distress and hardship 

to his family, that Sandra Walgate and her family have suffered great emotional 

and financial stress because of her son’s gambling addiction, and that Abraham and 

Zanotti will be negatively affected by the opening of a casino in their community 

of Cleveland and Cuyahoga County. 

{¶ 21} In support of their arguments regarding standing arising from the 

alleged negative effects of gambling, appellants rely on the affidavits of Dr. Valerie 

C. Lorenz and Zanotti. Lorenz’s affidavit states that compulsive or pathological 

gambling is “an uncontrollable urge to gamble despite negative consequences or a 

desire to stop,” that the expansion of legalized gambling has resulted in more 

compulsive gamblers in the United States, and that slot machines are the most 

addictive form of gambling. The affidavit offers the American Psychiatric 

Association’s definition of pathological gambling and a list of negative effects of 

gambling for pathological gamblers and their families from its Diagnostic and 
January Term, 2016 

11 

Statistical Manual of Mental Disorders. Zanotti’s affidavit makes various 

statements about the history of gambling in Ohio, alludes to unspecified 

“significant societal problems directly connected” to gambling addiction, and states 

that the government’s “extra-legal activity” related to gambling expansion in Ohio 

violates the Ohio Constitution and defrauds the public. 

{¶ 22} The negative effects of gambling that appellants allege 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. 

{¶ 23} This case differs from cases challenging gambling laws in which 

standing was found to exist. For example, in Patchak v. Salazar, 632 F.3d 702 

(D.C.Cir.2011), aff’d, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. 

Patchak, ___ U.S. ___, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012), the plaintiff sued 

the Secretary of the Interior, alleging that he lived near land that the secretary had 

decided to hold in trust for the construction and operation of a gaming facility. Id.

at 703. Among the factors supporting standing were that the gaming facility would 

attract 3.1 million visitors per year, destroying the peace and quiet of the area; that 

there would be increased pollution and crime in the rural farming community; and 

that the facility would divert police and medical resources in the area. Id. at 703-

704. The secretary did not challenge the plaintiff’s standing under Article III of the 

United States Constitution, but the court found “no doubt” that the plaintiff satisfied 

the requirements for standing. Id. at 704. The test for Article III standing, like the 

test for common-law standard in Ohio, requires an injury in fact, causation, and 

redressability. Amador Cty. v. Salazar, 640 F.3d 373, 378 (D.C.Cir.2011), citing 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 

(1992). Specifically, the court stated that the impact of the proposed gaming facility 

on the plaintiff’s way of life constituted an injury in fact that was traceable to the 
SUPREME COURT OF OHIO

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secretary’s decision and that could be redressed with an injunction preventing 

gaming on the property. Patchak at 704. 

{¶ 24} Similarly, in Amador Cty., the county sued the Secretary of the 

Interior, challenging the secretary’s approval of a compact between an Indian tribe 

and the state that would allow gambling on land in the county. Both the district 

court and the circuit court rejected the secretary’s argument that the county lacked 

standing. Id. at 378-379. The circuit court found that an injury in fact existed 

because the planned gaming facility would increase the county’s infrastructure 

costs and affect the character of the community. Id. at 378. The court also found 

that the causation and redressability elements of standing were met because the 

county had alleged a direct causal connection between the secretary’s approval of 

the Indian tribe’s compact with the state and the alleged harm, which would be 

remedied if the compact were rejected. Id. 

{¶ 25} The plaintiffs in Patchak and Amador Cty. articulated direct, 

concrete harm different from that which the general public would experience. This 

is the same standard for establishing injury that must be met under our precedent. 

For example, in Willoughby Hills v. C. C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 27, 

591 N.E.2d 1203 (1992), which involved a challenge to a board of zoning appeals 

decision, we explained our prior holding in Schomaeker v. First Natl. Bank of 

Ottawa, 66 Ohio St.2d 304, 421 N.E.2d 530 (1981), that a contiguous property 

owner was directly affected by a village planning commission’s order granting a 

use variance and, therefore, had standing to seek review of the commission’s order. 

We stated as follows: 

The private litigant has standing to complain of harm which 

is unique to himself. In contrast, a private property owner across 

town, who seeks reversal of the granting of a variance because of its 

effect on the character of the city as a whole, would lack standing 
January Term, 2016 

13 

because his injury does not differ from that suffered by the 

community at large. The latter litigant would, therefore, be unable 

to demonstrate the necessary unique prejudice which resulted from 

the board’s approval of the requested variance. 

Willoughby Hills at 27. 

{¶ 26} Unlike the plaintiffs in Patchak and Amador Cty., appellants in this 

case have not pled concrete harm or injury different in manner or degree from that 

suffered by the general public, as contemplated by our example from Willoughby 

Hills. Whereas the federal cases set forth concrete examples of harm that would be 

caused by the proposed gambling facilities—i.e., that millions of new visitors 

would fundamentally alter a landowner’s rural property and that economic damages 

would necessarily result from the county’s increased infrastructure costs—

appellants offer no examples of any particularized harm beyond bare assertions that 

they and their families have suffered emotional and financial distress because of 

gambling issues. Such general, unspecific allegations fail to establish a direct, 

personal interest different from the concerns shared by the general public. Rather, 

appellants’ alleged “interest in being protected from the negative effects of 

unauthorized gambling” is an interest shared by the general public. Their allegation 

of that interest does not establish that appellants have a different, direct, personal 

stake in the outcome of the case, which we have held to be required for traditional 

standing. Sheward, 86 Ohio St.3d at 469-470, 715 N.E.2d 1062; Ohio Trucking 

Assn. v. Charles, 134 Ohio St.3d 502, 2012-Ohio-5679, 983 N.E.2d 1262, ¶ 7. 

Accordingly, appellants cannot show that they have satisfied the first factor to 

establish standing. 

{¶ 27} Appellants also fail to show how their alleged injuries are traceable 

to the state’s allegedly unlawful conduct. In Patchak and Amador Cty., the alleged 

injuries could be traced to decisions made by the Secretary of the Interior. And in 
SUPREME COURT OF OHIO

14 

each case, a reversal or nullification of the secretary’s decision would redress the 

plaintiff’s alleged injury. Here, the alleged injuries are general and were not caused 

by the state or gaming operators. Appellants fail to meet the causation element of 

standing because any alleged negative effects of gambling on individuals and the 

general community originated before the state did anything in response to the 

voters’ approval of Article XV, Section 6(C) of the Ohio Constitution. For this 

reason, appellants also fail to meet the third element of standing, redressability. 

Even if the state’s actions were nullified, the alleged general negative effects of 

gambling would continue to exist. 

{¶ 28} The Lorenz and Zanotti affidavits also fail to support appellants’ 

arguments. The conclusory statements within the affidavits do not show any injury 

peculiar to appellants, any causal link between the injuries alleged and the state’s 

actions or how the requested relief would redress the alleged injuries. 

{¶ 29} For these reasons, we affirm the Tenth District’s holding that 

appellants have failed to establish standing arising from certain appellants’ status 

as individuals who have experienced the negative effects of gambling. We decline 

to adopt appellants’ second proposition of law. 

C. Alleged standing arising from status claimed with reference to schools 

{¶ 30} Appellants’ third proposition of law involves two distinct arguments. 

First, appellants argue that they have standing because one appellant is a publicschool teacher and other appellants are parents of public-school students who are 

interested in ensuring that lottery and casino funds are dedicated to educational use. 

Second, appellants assert that they have standing because some appellants 

contribute to the commercial-activity tax and have an interest in ensuring that 

commercial-activity tax funds are properly allocated to education. We address each 

argument in turn. 
January Term, 2016 

15 

1. Standing as parents and a teacher of public-school students 

{¶ 31} Appellants assert that Bolyard, Jeffrey Malek, Michelle WatkinMalek, Thomas W. Adams, and Donna J. Adams are parents of public-school 

students and that Sandra L. Walgate is a public-school teacher, all of whom have 

standing based on their particular interest in preventing the unconstitutional 

diversion of lottery and casino proceeds from funds dedicated to educational use. 

In particular, they claim that funds that should go to schools have been redirected 

and that net proceeds of lotteries are being distributed to gambling interests instead 

of educational programs as required by the Ohio Constitution. 

{¶ 32} Appellants rely on two of our decisions to support this standing 

argument: Cincinnati School Dist. Bd. of Edn. v. Walter, 58 Ohio St.2d 368, 390 

N.E.2d 813 (1979), and DeRolph v. State, 78 Ohio St.3d 193, 677 N.E.2d 733 

(1997). In Walter, we held that the statutory system for financing Ohio’s public 

schools did not violate the Ohio Constitution. Walter at syllabus. Eighteen years 

later, in DeRolph, however, we held that specific portions of Ohio’s public-schools 

financing system were unconstitutional. DeRolph at syllabus. The plaintiffs in 

Walter included public-school students and their parents, Walter at 368-369, and 

the plaintiffs in DeRolph included public-school “teachers, pupils, and next 

friends,” DeRolph at 193. But Walter and DeRolph do not support appellants’ 

argument that they have standing, either as parents of public-school students or as 

a public-school teacher. The issue of the plaintiffs’ standing was not raised in either 

Walter or DeRolph, and we accordingly made no statement of law in those cases 

relevant to the issue presented here. Rather, in both cases, the limited discussion 

on jurisdiction involved only political-question, separation-of-powers, and judicialreview issues, none of which was raised here. Moreover, we decided those cases 

well before clarifying the law regarding standing in ProgressOhio.org, which is 

directly pertinent to the issues in this case. 
SUPREME COURT OF OHIO

16 

{¶ 33} The parent and teacher appellants have not alleged a direct, personal 

stake in the outcome of the case sufficient to establish an injury under the first 

element of our standing analysis. Many members of the general public who are 

neither parents of public-school students nor public-school teachers contribute to 

the funding of public schools in one form or another. Appellants’ interest in 

ensuring that the public-school system receives the proper funds is shared by the 

general public. 

{¶ 34} For these reasons, we reject the argument that certain appellants have 

standing as parents and a teacher of public-school students. 

2. Standing as contributors to special funds for schools 

{¶ 35} Appellants’ second argument under the third proposition of law is 

that ASL and Agnew, as the owner of ASL, have standing as contributors to special 

funds for schools to pursue claims of unconstitutional diversion of lottery proceeds 

and casino tax proceeds from education or school funds. The only allegation in the 

amended complaint related to ASL’s standing is that the corporation “pays the 

commercial activity tax on its income into the Ohio School District Tangible Tax 

Replacement Fund and the Ohio Local Government Tangible Property Tax 

Replacement Fund.” It is undisputed that the funds collected from the commercialactivity tax are allocated in part to the school-district tangible-property-tax 

replacement fund and the Ohio local-government tangible-property-tax 

replacement fund. R.C. 5751.01(C)(1). But ASL’s payment of the commercialactivity tax does not give ASL or Agnew standing as a contributor to a special fund 

for schools. 

{¶ 36} Absent statutory authority, a taxpayer lacks standing “to institute an 

action to enjoin the expenditure of public funds unless he has some special interest 

therein by reason of which his own property rights are placed in jeopardy.” 

Masterson, 162 Ohio St. 366, 123 N.E.2d 1, at paragraph one of the syllabus. 

Taxpayers who contribute “to a special fund have a special interest in that fund for 
January Term, 2016 

17 

purposes of standing.” Racing Guild of Ohio, 28 Ohio St.3d 317, 503 N.E.2d 1025 

at paragraph two of the syllabus. 

{¶ 37} In support of their argument regarding standing as contributors to 

special funds for schools, appellants rely on two of this court’s decisions: Racing 

Guild of Ohio and State ex rel. Dann v. Taft, 110 Ohio St.3d 252, 2006-Ohio-3677, 

853 N.E.2d 263. But neither Racing Guild of Ohio nor Dann supports appellants’ 

argument that they have standing because certain appellants contribute to the 

commercial-activity tax and some commercial-activity-tax funds are used to fund 

public schools. 

{¶ 38} In Dann, the relator sought a writ of mandamus ordering the 

governor to turn over reports relating to the Ohio Bureau of Workers’ 

Compensation. The relator argued that he needed the reports because he was 

considering filing a lawsuit alleging wrongdoing with regard to the Ohio Workers’ 

Compensation Fund, but the governor argued that executive privilege protected the 

reports. The relator responded that he had a particularized need for the reports 

because, as an employer, he contributed to the Workers’ Compensation Fund. In 

analyzing the relator’s need under Ohio’s privilege laws, we noted that although 

the relator would not have standing to file a suit as a taxpayer who paid taxes into 

the general fund, he arguably had “special fund” taxpayer standing to file such a 

suit because he contributed to the Workers’ Compensation Fund as an employer. 

Id. at ¶ 9-10. But whether the relator did, in fact, have “special fund” standing was 

not before us. 

{¶ 39} The relevant plaintiffs in Racing Guild of Ohio were pari-mutuel 

clerks who paid license fees into the Ohio State Racing Commission’s operating 

fund, which the commission used to defray its operating costs, salaries, expenses, 

and the cost of administering and enforcing R.C. Chapter 3769. R.C. 3769.03. The 

clerks alleged that the commission did not receive license fees from all persons 

participating in the racing industry because it failed to require licensure of certain 
SUPREME COURT OF OHIO

18 

individuals that participated in racing. In assessing the plaintiffs’ standing, this 

court’s focus remained on personal harm to the plaintiffs. We stated as follows: 

The only reasonable result of [the commission’s not 

requiring license fees from everyone participating in racing] is an 

inevitable increase in the amount of the fees paid by each individual 

[who is required to pay] or a decrease in services rendered or the 

effectiveness of the commission’s actions. The claimed illegal 

failure of the commission to require licensing and the payment of 

license fees of participants in the racing industry into the special 

fund logically could result in either the need for a fee increase sooner 

than would be required or necessitate a fee increase of a greater 

amount or both. 

Racing Guild of Ohio at 322. We held that the clerks had a special interest in the 

special fund and thus had standing to challenge the commission’s actions because 

those actions jeopardized the clerk’s “property rights to whatever portion of their 

income that might go to these increased license fees.” Id. 

{¶ 40} Unlike the license fees in Racing Guild of Ohio, ASL’s payment of 

the commercial-activity tax does not give ASL a special interest in how the 

commercial-activity tax is collected. R.C. 5751.02(A) created the commercialactivity tax—a tax “for the privilege of doing business in this state”—for the 

general “purpose of funding the needs of this state and its local governments.” The 

commercial-activity tax is paid into the commercial-activities-tax-receipts fund, 

which is, in turn, credited to the revenue-enhancement fund, the commercialactivity-tax-motor-fuel-receipts fund, the general revenue fund, the school-district 

tangible-property-tax replacement fund, and the local-government tangible-
January Term, 2016 

19 

property-tax replacement fund in statutorily prescribed percentages. R.C. 

5751.02(C)(1). 

{¶ 41} R.C. 5709.92 and 5709.93 govern payments from the school-district 

tangible-property-tax replacement fund and the local-government tangibleproperty-tax replacement fund respectively. If the total amount in either fund is 

insufficient to make the payments required by R.C. 5709.92 or 5709.93, the 

shortfall is remedied from the general revenue fund, and not from an increase in the 

commercial-activity tax. R.C. 5751.02(D)(1) and (2). Thus, the allegedly 

unconstitutional exemption of the casinos from paying the commercial-activity tax, 

and the resultant reduction in revenue derived from it, has no bearing on the amount 

of commercial-activity tax that any other taxpayer, including ASL, owes. Nor does 

the amount of commercial-activity tax collected affect payments from the schooldistrict tangible-property-tax replacement fund and the local-government tangibleproperty-tax replacement fund. 

{¶ 42} Although ASL has an interest in the commercial-activity tax as a 

payer of that tax, appellees’ alleged wrongdoing does not jeopardize ASL’s own 

property rights. Any harm from a shortfall would be felt by the public in general 

and not solely by contributors to the commercial-activity tax. In contrast to the 

clerks in Racing Guild of Ohio, appellants have simply not alleged, and there is no 

set of facts consistent with the amended complaint that would demonstrate, injury 

to ASL different from the general public based on the manner in which the 

commercial-activity tax is or is not applied to the casinos. To hold that specialfund standing exists in this case would expand special-fund standing in a manner 

that comes perilously close to recognizing general-taxpayer standing. We 

accordingly reject the argument that appellants have standing because certain 

appellants contribute to the commercial-activity tax. 

{¶ 43} For these reasons, we decline to adopt appellants’ third proposition 

of law. 
SUPREME COURT OF OHIO

20 

D. Kinsey’s standing and the alleged necessity of allowing opportunity to amend 

a complaint before its dismissal for failure to show standing 

{¶ 44} Like appellant’s third proposition of law, their final proposition of 

law can be broken into two components. First, they claim that the lower courts 

improperly applied the legal standard for determining whether to dismiss Kinsey’s 

equal-protection claim for lack of standing, based on the absence of an allegation 

that Kinsey was “ready and able” to engage in the business of casino gaming in 

Ohio. Second, they argue that a court must allow a plaintiff an opportunity to 

amend the complaint before the court may dismiss the complaint for failure to state 

a claim for lack of standing. 

1. Kinsey’s standing 

{¶ 45} In their amended complaint, appellants alleged that Kinsey “would 

engage in casino gaming in Ohio but for” Article XV, Section 6(C) of the Ohio 

Constitution, which “grant[s] a special and exclusive privilege to engage in casino 

gaming in Ohio to two gaming corporations.” Kinsey’s claim requests a declaration 

that Article XV, Section 6(C) of the Ohio Constitution, H.B. 1, H.B. 519, and H.B. 

277 grant a monopoly on casino gambling to certain gaming companies and that 

this monopoly violates the Equal Protection Clause of the Fourteenth Amendment 

to the United States Constitution. Appellants argue that Kinsey’s allegation that he 

would engage in casino gaming but for Article XV, Section 6(C)’s limitation is 

sufficient to survive appellees’ motion to dismiss for lack of standing. 

{¶ 46} “When the government erects a barrier that makes it more difficult 

for members of one group to obtain a benefit than it is for members of another 

group, a member of the former group seeking to challenge the barrier need not 

allege that he would have obtained the benefit but for the barrier in order to establish 

standing.” Northeastern Florida Chapter of Associated Gen. Contrs. of Am. v. 

Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). “The 

‘injury in fact’ in an equal protection case of this variety is the denial of equal 
January Term, 2016 

21 

treatment resulting from the imposition of the barrier, not the ultimate inability to 

obtain the benefit.” Id. For example, to establish standing to challenge a set-aside 

program based on the inability to compete on an equal footing in the bidding 

process, a party need only demonstrate that it is able and ready to bid on contracts 

and that a discriminatory policy prevents it from doing so on an equal basis. Id. 

The Sixth Circuit has applied those principles in a case alleging an equal-protection 

violation regarding the ability to apply for a casino license, stating that “ ‘the 

standing issue hinges on whether [the plaintiff] has sufficiently alleged that it is 

able and ready to bid for a casino license.’ ” Lac Vieux Desert Band of Lake 

Superior Chippewa Indians v. Michigan Gaming Control Bd., 172 F.3d 397, 404 

(6th Cir.1999), quoting the district court opinion. 

{¶ 47} Appellees correctly point out that Kinsey’s general allegation that he 

“would engage in casino gaming” but for Article XV, Section 6(C) of the Ohio 

Constitution is weaker than the allegations regarding standing in Lac Vieux. There, 

Lac Vieux alleged that it owned and operated another casino in Michigan, had 

arranged for development of a casino in Detroit, had selected a site for the casino, 

and was ready and able to submit the requisite information for a casinodevelopment proposal, along with the required fees. See Lac Vieux at 404-405. But 

Lac Vieux, as well as Carroll v. Nakatani, 342 F.3d 934 (9th Cir.2003), which 

appellees also cite, was decided on summary judgment, not a motion to dismiss. 

The level of specificity in Lac Vieux’s complaint is not required to survive a Civ.R. 

12(B)(6) motion to dismiss, because at the pleading stage, we presume that general 

allegations embrace the specific facts necessary to support a claim. Lujan, 504 U.S. 

at 561, 112 S.Ct. 2130, 119 L.Ed.2d 351. Kinsey’s allegation that he would engage 

in casino gaming but for the bar in Article XV, Section 6(C) of the Ohio 

Constitution, is a sufficient allegation of injury to withstand a Civ.R. 12(B)(6) 

motion to dismiss. 
SUPREME COURT OF OHIO

22 

{¶ 48} As noted above, under traditional standing principles, a plaintiff 

must show, at a minimum, not only that he or she has suffered an injury that is fairly 

traceable to the defendant’s allegedly unlawful conduct, but also that the requested 

relief is likely to redress the injury. ProgressOhio.org, Inc., 139 Ohio St.3d 520, 

2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7, quoting Moore, 133 Ohio St.3d 55, 2012-

Ohio-3897, 975 N.E.2d 977, at ¶ 22. Appellees argue that Kinsey lacks standing 

because the relief he requests would not redress his injury. 

{¶ 49} Kinsey requests relief in the form of a declaration that Article XV, 

Section 6(C) of the Ohio Constitution, H.B. 1, H.B. 519, and H.B. 277 violate the 

Fourteenth Amendment to the United States Constitution. A declaration that those 

provisions are unconstitutional would rescind the limited grant of authority for 

casino gaming rather than allow all potential operators, like Kinsey, to conduct 

casino gambling in the state. But the injury here is the denial of equal treatment 

resulting from the limitations imposed by Article XV, Section 6(C) of the Ohio 

Constitution, H.B. 1, H.B. 519, and H.B. 277. See Northeastern Florida Chapter 

of Associated Gen. Contrs. of Am., 508 U.S. at 666, 113 S.Ct. 2297, 124 L.Ed.2d 

586. While a declaration that those provisions violate the Fourteenth Amendment 

to the United States Constitution would not grant the general public permission to 

conduct casino gambling in Ohio, it would eliminate the current inequality in the 

opportunity to obtain that benefit. Accordingly, we conclude that Kinsey’s 

allegation is sufficient to meet the redressability element of standing. 

{¶ 50} Whether Kinsey could conclusively demonstrate standing were he 

faced with a motion for summary judgment is not before us. But under the 

standards prescribed for dismissal under Civ.R. 12(B)(6), Kinsey has sufficiently 

alleged standing to withstand appellees’ motion to dismiss. 

2. Necessity of allowing an opportunity to amend a complaint before dismissal 

{¶ 51} Appellants’ final argument is that a court must allow a plaintiff an 

opportunity to amend a complaint before the court dismisses that complaint for 
January Term, 2016 

23 

failure to show standing. But the facts of this case foreclose that argument. First, 

the plaintiffs in this case were, in fact, allowed an opportunity to amend their 

complaint, and they took full advantage of this opportunity by doing so. Moreover, 

they filed their amended complaint after the state filed motions to dismiss alleging 

that appellants lacked standing. Second, there is no evidence in the record that 

appellants requested leave from the trial court to file a second amended complaint 

or that they submitted a second amended complaint. By their own actions, 

appellants effectively waived this issue, and we decline to set forth a statement of 

law requiring courts to allow a plaintiff an opportunity to amend a complaint before 

the court dismisses a case based on a lack of standing. We accordingly decline to 

adopt appellants’ fourth proposition of law. 

III. Conclusion 

{¶ 52} Appellants have failed to establish that they have standing based on 

their status as individuals experiencing the negative effects of gambling, parents 

and a teacher of public-school students, and contributors to the commercial-activity 

tax. Because no individual member of Ohio Roundtable has established standing, 

we further conclude that the Ohio Roundtable lacks organizational standing. 

Kinsey, however, has sufficiently alleged standing to survive appellees’ motion to 

dismiss his equal-protection claim. Finally, because appellants did not attempt to 

file a second amended complaint, we decline to issue a statement of law requiring 

courts to provide a plaintiff an opportunity to amend a complaint before a case is 

dismissed for lack of standing. For these reasons, we affirm in part and reverse in 

part the judgment of the Tenth District Court of Appeals. We specifically reverse 

the Tenth District’s judgment only to the extent that it affirms the trial court’s 

dismissal of Kinsey’s equal-protection claim, and we remand to the Franklin 

County Court of Common Pleas for further proceedings on that claim. In all other 

respects, we affirm the Tenth District’s judgment. 

Judgment affirmed in part 
SUPREME COURT OF OHIO

24 

 and reversed in part, 

and cause remanded. 

KENNEDY, J., concurs. 

 PFEIFER, J., concurs in part and dissents in part and concurs in judgment 

with an opinion in which O’NEILL, J., joins. 

 LANZINGER, J., concurs in part and dissents in part with an opinion in which 

O’CONNOR, C.J., and DEGENARO, J., join. 

 MARY DEGENARO, J., of the Seventh Appellate District, sitting for 

O’DONNELL, J. 

_________________ 

PFEIFER, J., concurring in part and dissenting in part. 

{¶ 53} As far as I can tell, public-right standing continues to exist in Ohio. 

See State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 

471, 715 N.E.2d 1062 (1999) (“This court has long 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”). But this court continues to treat this form of standing, and the 

litigants who rely on it, dismissively. See ProgressOhio.org, Inc. v. JobsOhio, 139 

Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 37-55 (Pfeifer, J., dissenting) 

(explaining the reasons for public-right standing generally and why I believe it 

applied in that case). 

{¶ 54} This case is of great interest to the public. It involves a 2009 

constitutional amendment on which over 3,000,000 Ohioans cast a vote. Ohio 

Secretary of State, State Issue 3: November 3, 2009, Official Results, 

http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2009Election

Results/20091103issue3.aspx (accessed Jan. 14, 2016). We should honor the 

people of Ohio enough to allow a judge to hear the litigants’ arguments on the 

merits in this case. Whether the arguments are good enough to carry the day is 
January Term, 2016 

25 

unknown, but the litigants deserve the right to be heard concerning a significant 

constitutional amendment that as recently as six years ago engaged the attention of 

over 3,000,000 Ohioans. 

{¶ 55} I don’t think that Ohioans should have the unfettered ability to 

challenge provisions of the Constitution of Ohio, though any concerns that there 

will be an avalanche of cases asserting public-right standing are unwarranted 

because this court has demonstrated its ability to reject frivolous, inconsequential, 

or inane claims. But when citizens bring before the court significant and important 

issues that affect millions of Ohioans, this court should not throw up its hands and 

sputter “but these people have not suffered a differentiated harm.” 

{¶ 56} I concur in the portion of the majority opinion that concludes that 

appellant Frederick Kinsey has standing. I dissent from the portions of the majority 

opinion that conclude that the various other appellants do not have standing, 

because I believe that they have public-right standing. I would allow all of the 

issues raised to be heard on the merits. Accordingly, I concur in part and dissent in 

part. 

 O’NEILL, J., concurs in the foregoing opinion. 

_________________ 

LANZINGER, J., concurring in part and dissenting in part.

{¶ 57} Although I agree with the majority’s determination that appellants 

Robert L. Walgate Jr., Sandra Walgate, Joe Abraham, David Zanotti, and the 

American Policy Roundtable have failed to establish standing and with the decision 

to decline to require courts to provide a plaintiff an opportunity to amend a 

complaint before a case is dismissed for lack of standing, I do not agree that 

appellant Frederick Kinsey has sufficiently alleged standing to survive appellees’ 

motion to dismiss. I therefore dissent in part and would affirm the Tenth District 

Court of Appeals’ judgment dismissing this case in its entirety. 

 
SUPREME COURT OF OHIO

26 

I. Analysis 

A. Kinsey lacks standing to bring this claim 

{¶ 58} Although Kinsey claims that he was denied equal protection, his 

claim is simply one item in a laundry list of challenges compiled by appellants in a 

transparent attempt to have Article XV, Section 6(C) of the Ohio Constitution and 

the implementing statutes of the casino amendment invalidated simply because they 

do not want casino gambling in Ohio.2 Certain appellants allege that the negative 

effects of gambling constitute injury in fact. But Kinsey alleges only that he “would 

engage in casino gaming in Ohio but for the provisions of” the amendment to 

Ohio’s Constitution that “grant[s] a special and exclusive privilege to engage in 

casino gaming in Ohio to two gaming corporations.” The complaint sets forth one 

claim titled “Grant of Monopoly,” which restates the Equal Protection Clause of 

the Fourteenth Amendment to the United States Constitution and declares that 

Ohio’s casino-gaming amendment and statutes grant a monopoly that violates the 

Fourteenth Amendment. But there is no allegation directly connecting Kinsey to 

this claim. In the prayer for relief, Kinsey requests a declaration that Ohio’s casinogaming amendment and statutes violate the Fourteenth Amendment of the United 

States Constitution. From the sum total of these allegations, the majority holds that 

Kinsey has standing. The absurdity of this position is obvious. 

{¶ 59} The constitutional amendment that authorizes casino gambling was 

a policy choice instituted by initiative and voted on by the public. The direct 

consequence of the relief Kinsey seeks—declaring the Ohio Constitutional 

provision on casino gaming unconstitutional under the Fourteenth Amendment to 

the United States Constitution—would do through the court what opponents to 

gambling were unable to do at the ballot box. 

 

2

 It defies logic for an individual who says he wants to be a casino operator to hitch his wagon to an 

amended complaint in which all the other plaintiffs seek to curtail or overturn the amendment and 

statutes. 
January Term, 2016 

27 

{¶ 60} Of course the voters themselves retain the power to decide to 

prohibit casino gambling by repealing the constitutional amendment. Article II, 

Section 1 of the Ohio Constitution provides: 

The legislative power of the state shall be vested in a General 

Assembly consisting of a senate and house of representatives but the 

people reserve to themselves the power to propose to the General 

Assembly laws and amendments to the constitution, and to adopt or 

reject the same at the polls on a referendum vote as hereinafter 

provided. They also reserve the power to adopt or reject any law, 

section of any law or any item in any law appropriating money 

passed by the General Assembly, except as hereinafter provided; 

and independent of the General Assembly to propose amendments 

to the constitution and to adopt or reject the same at the polls. The 

limitations expressed in the constitution, on the power of the 

General Assembly to enact laws, shall be deemed limitations on the 

power of the people to enact laws. 

The constitution thus provides for a procedure by which the people may amend the 

constitution or enact laws. In allowing Kinsey’s lawsuit to continue, the majority 

allows one individual who has insufficiently alleged harm or redressability, i.e., 

who lacks standing, to override the will of the people of Ohio. 

{¶ 61} Indeed, standing “embodies general concerns about how courts 

should function in a democratic system of government.” State ex rel. Ohio 

Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469, 715 N.E.2d 1062 

(1999). Four justices now allow the will of the people to be questioned based on 

the mere assertion by one individual that he “would engage” in casino gambling, 

without requiring assertion of further facts showing that he indeed is ready and able 
SUPREME COURT OF OHIO

28 

to do so. This attempt to usurp the will of the people is an end-run around the 

legislative process and, although disguised as a procedural question of law, should 

not be countenanced. 

{¶ 62} Under our traditional standing principles, a plaintiff must show, at a 

minimum, that he or she has 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.’ ” See ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 

2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7, quoting Moore v. Middletown, 133 Ohio 

St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, at ¶ 22. Kinsey has not met these 

criteria. He has not sufficiently shown that he has suffered an injury, and he has 

not shown that the relief he requests would redress his alleged injury. 

B. The complaint does not sufficiently allege an injury

{¶ 63} According to the majority, “Kinsey’s allegation that he would 

engage in casino gaming but for the bar in Article XV, Section 6(C) of the Ohio 

Constitution, is a sufficient allegation of injury to withstand a Civ.R. 12(B)(6) 

motion to dismiss.” Majority at ¶ 47. 

{¶ 64} The majority relies upon federal cases to bolster its conclusion that 

Kinsey has standing, including Northeastern Florida Chapter of Associated Gen. 

Contrs. of Am. v. Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 

(1993), and Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan 

Gaming Control Bd., 172 F.3d 397 (6th Cir.1999). Both cases are distinguishable, 

as discussed below. The majority also relies on Lujan v. Defenders of Wildlife, 504 

U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), a case that specifically 

considered whether a plaintiff had properly invoked federal jurisdiction, in stating 

that “at the pleading stage, we presume that general allegations embrace the specific 

facts necessary to support a claim.” Majority opinion at ¶ 47. 

{¶ 65} But in presuming the existence of additional facts, the majority 

presupposes the existence of an injury that is not alleged, even generally. 
January Term, 2016 

29 

According to the majority, “the injury here is the denial of equal treatment resulting 

from the limitations imposed by Article XV, Section 6(C) of the Ohio Constitution, 

H.B. 1, H.B. 519, and H.B. 277.” Majority opinion at ¶ 49. This language is 

nowhere in the complaint. Instead, the majority pulls this “denial of equal 

treatment” language from the United States Supreme Court’s decision in 

Northeastern. Id. at 666. The majority acknowledges that in Lac Vieux, a case that 

was before the Sixth Circuit for review of a summary judgment, the Sixth Circuit 

explained that the district court had correctly noted that “ ‘the standing issue hinges 

on whether [the plaintiff] has sufficiently alleged that it is able and ready to bid for 

a casino license.’ ” (Emphasis added.) Id. at 404. Notably, the court used the word 

“alleged,” not “proved,” although it was reviewing a summary judgment. 

{¶ 66} The amended complaint in this case alleges simply that Kinsey “is 

being deprived of the right to exercise the trade or business of casino gaming in 

Ohio” by Article XV, Section 6(C) of the Ohio Constitution and that he “would 

engage in casino gaming in Ohio but for” Article XV, Section 6(C) of the Ohio 

Constitution, H.B. 1, H.B. 519, and H.B. 277, which “grant a special and exclusive 

privilege to engage in casino gaming in Ohio to two gaming corporations.” There 

is absolutely no allegation of an injury that the requested remedy can redress. 

{¶ 67} The complaint here avers nothing about actions that Kinsey took, 

expenditures that he made, or any other facts showing how he was injured by the 

amendment or that he was ready and able to participate in casino gaming. “ ‘[I]n 

ruling on standing, it is both appropriate and necessary to look to the substantive 

issues * * * to determine whether there is logical nexus between the status asserted 

and the claim sought to be adjudicated * * * to assure that [the litigant] is a proper 

and appropriate party to invoke’ legal proceedings.” (Emphasis added.) Clifton v. 

Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, 964 N.E.2d 414, ¶ 18, quoting 

Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Here, 

there are no allegations to support a logical nexus between Kinsey’s status as 
SUPREME COURT OF OHIO

30 

someone who would like to operate a casino and his claim that the casino-gaming 

amendment and statutes should be struck down for granting a monopoly that 

violates equal protection. Additionally, “standing depends on whether the plaintiffs 

have alleged such a personal stake in the outcome of the controversy that they are 

entitled to have a court hear their case.” ProgressOhio.org, Inc., 139 Ohio St.3d 

520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. But the complaint is devoid of 

allegations that Kinsey has a personal stake in the outcome of the controversy 

different from any other member of the public. 

{¶ 68} The majority’s holding that Kinsey has standing is based on 

unsupported, incomplete, and conclusory allegations and allows his challenge to a 

constitutional amendment to go forward on the slender reed of what he says he 

“would” do. There is no factual allegation that he has done anything or is capable 

of doing anything to further this hope. The lack of a logical nexus between the 

status he asserts and the claim he seeks to be adjudicated is especially clear when 

the significant financial, experiential, and other resources required to establish and 

operate a casino are considered. Under the majority’s logic, every person in the 

world has standing to state a claim identical to Kinsey’s, as long as the complaint 

contains the simple statement that he or she would engage in casino gaming in Ohio 

but for the current state of the law. Such an expansive interpretation of pleading 

effectively eliminates the need for and purpose of Ohio’s standing doctrine. 

{¶ 69} I would instead hold that Kinsey’s mere statement of aspiration is 

insufficient to allege actual harm or the possibility that the harm could be redressed. 

The factual allegations of the complaint must be accepted as true when a court 

reviews a dismissal on a Civ.R. 12(B)(6) motion. Mitchell v. Lawson Milk Co., 40 

Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). But in the first instance, there must 

be factual allegations from which the court can make all reasonable inferences. If 

it is beyond doubt that Kinsey can prove no set of facts entitling him to relief, his 
January Term, 2016 

31 

claim must be dismissed. See O’Brien v. Univ. Community Tenants Union, Inc., 42 

Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. 

{¶ 70} The majority notes that the plaintiff in Lac Vieux “alleged that it 

owned and operated another casino in Michigan, had arranged for development of 

a casino in Detroit, had selected a site for the casino, and was ready and able to 

submit the requisite information for a casino-development proposal, along with the 

required fees.” Majority opinion at ¶ 47, citing Lac Vieux at 404-405. While it is 

true that Lac Vieux involved a case at the summary-judgment stage, that case does 

not stand for the proposition that a mere conclusory statement is sufficient to 

survive a motion to dismiss. The Lac Vieux case was able to proceed to the 

summary-judgment stage precisely because the plaintiff set forth factual allegations 

from which it could be afforded all reasonable inferences. Unlike the plaintiffs in 

Lac Vieux, Kinsey failed to set forth any further allegations. His statement is 

accordingly an insufficient allegation of injury to withstand a Civ.R. 12(B)(6) 

motion to dismiss. 

C. Any alleged injury would not be redressed by the requested relief 

{¶ 71} Moreover, even if we were to assume that sufficient facts have been 

pled asserting an injury to Kinsey, he has not alleged that his injury is likely to be 

redressed by the requested relief. Kinsey alleges that he is unable to operate a 

casino facility in Ohio because the Ohio Constitution grants a monopoly3 to certain 

gaming companies. He requests a declaration that Article XV, Section 6(C) 

violates equal protection, but such a declaration would rescind the limited grant of 

authority that the provision grants rather than allow all potential operators to 

conduct casino gambling in the state. It follows then that Kinsey’s requested relief 

would not redress his injury, i.e., his inability to operate a casino under current Ohio 

 

3

 In 2015, the voters passed an antimonopoly amendment, see Article II, Section 1e of the Ohio 

Constitution; however, that amendment has no effect on the case before us. 
SUPREME COURT OF OHIO

32 

law. Instead, the requested relief would simply eliminate the ability of anyone to 

operate a casino. The majority concludes that no redressability problem exists, 

stating, “While a declaration that those provisions violate the Fourteenth 

Amendment to the United States Constitution would not grant the general public 

permission to conduct casino gambling in Ohio, it would eliminate the current 

inequality in the opportunity to obtain that benefit. Accordingly, we conclude that 

Kinsey’s allegation is sufficient to meet the redressability element of standing.” 

Majority at ¶ 49.

{¶ 72} This concoction is akin to throwing the baby out with the bathwater 

and ignores Kinsey’s sole allegation that he “is being deprived of the right to 

exercise” a casino-gaming business and “would engage in casino gaming” if he 

could. Extrapolating a disingenuous pleading into an injury and remedy to grant 

standing on the basis of a constitutional inequality is pretzel logic, twisting the 

straight line of standing analysis into something unrecognizable. 

{¶ 73} In Northeastern, a case on which the majority relies, the United 

States Supreme Court addressed standing in an equal-protection case challenging a 

city ordinance requiring that funds be set aside to award city contracts to minorityowned businesses. 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586. There, the 

court concluded that “[t]o establish standing, * * * a party challenging a set-aside 

program like Jacksonville’s need only demonstrate that it is able and ready to bid 

on contracts and that a discriminatory policy prevents it from doing so on an equal 

basis.” Northeastern at 666. Notwithstanding the use of the phrase “to establish 

standing,” the court concluded that the petitioner “sufficiently alleged both that the 

city’s ordinance is the ‘cause’ of its injury and that a judicial decree directing the 

city to discontinue its program would ‘redress’ the injury.” Id., fn. 5. In contrast 

to Kinsey’s requested relief in this case, the requested termination of the set-aside 

program in Northeastern would have opened the city-contract-bidding process to 

all contractors, including the petitioner, which alleged that its members “regularly 
January Term, 2016 

33 

bid on and perform construction work for the City of Jacksonville.” Id. at 659. 

Here, however, Kinsey’s requested relief would deprive everyone of the ability to 

operate a casino, even Kinsey, and there is no additional allegation to support the 

weak aspirational thought that he would engage in casino gaming if it were open to 

him. 

{¶ 74} The theory of redressability devised by the majority does not solve 

any problem identified in Kinsey’s amended complaint. Had Kinsey pled that 

because the opportunity to operate a casino is not open to all, it should not be open 

to any, the majority’s conclusion might be appropriate. However that is not his 

position. Nor would that assertion square with his allegation of injury. By joining 

with the other appellants in the underlying complaint, it is apparent that his goal is 

to do away with all casino gaming in Ohio, in spite of the will of the people. The 

majority accommodates this effort by giving Kinsey the legitimacy of standing to 

proceed. I cannot agree with this conclusion. 

II. Conclusion 

{¶ 75} Because our state precedent requires a showing of actual injury and 

redressability, I would hold that Kinsey’s bare, unsupported allegation that he 

“would engage in casino gaming in Ohio” if he were permitted to do so is 

insufficient to establish standing in this case, and therefore, I respectfully dissent 

from the majority’s judgment with regard to him, and I would affirm the judgment 

of the Tenth District Court of Appeals in its entirety. 

 O’CONNOR, C.J., and DEGENARO, J., concur in the foregoing opinion. 

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Black, McCuskey, Souers & Arbaugh, Thomas W. Connors, and James M. 

Wherley, for appellants. 

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, 

Michael J. Hendershot, Chief Deputy Solicitor, and Stephen P. Carney, Deputy 
SUPREME COURT OF OHIO

34 

Solicitor, for appellees Governor John R. Kasich, Ohio Casino Control 

Commission, Ohio Lottery Commission, and Tax Commissioner Joseph W. Testa. 

Calfee, Halter & Griswold, L.L.P., Christopher S. Williams, James F. Lang, 

Matthew M. Mendoza, Alexander B. Reich, and Lindsey E. Sacher, for appellees 

Rock Ohio Caesars, L.L.C., Rock Ohio Caesars Cleveland, L.L.C., and Rock Ohio 

Caesars Cincinnati, L.L.C. 

Ice Miller, L.L.P., Matthew L. Fornshell, John H. Oberle, and Albert G. Lin, 

for appellees Central Ohio Gaming Ventures, L.L.C., and Toledo Gaming 

Ventures, L.L.C. 

Dinsmore & Shohl, L.L.P., and Alan H. Abes, for appellee Thistledown 

Racetrack, L.L.C. 

Taft Stettinius & Hollister, L.L.P., Charles R. Saxbe, James D. Abrams, Irv 

Berliner, and Celia M. Kilgard, for appellees Northfield Park Associates, L.L.C., 

Lebanon Trotting Club, Inc., MTR Gaming Group, Inc., and PNK (Ohio), L.L.C. 

Porter Wright Morris & Arthur, L.L.P., Tami Hart Kirby, William G. Deas, 

and L. Bradfield Hughes, urging affirmance for amici curiae the Dayton Chamber 

of Commerce, the Youngstown/Warren Regional Chamber, the Seafarers 

Entertainment and Allied Trades Union, the Affiliated Construction Trades Ohio 

Foundation, and the Lebanon City School District. 

Paul Langon Cox III, Chief Counsel, Fraternal Order of Police of Ohio, Inc., 

urging affirmance for amicus curiae the Fraternal Order of Police of Ohio, Inc. 

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