The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Ohio AG Asks State Supreme Court To Bar Universal Injunction

Can a state trial court issue an "universal injunction" against all parts of a new law, even though "only two named plaintiffs have alleged narrow harms from only one part of the law."


The Ohio legislature recently enacted, over the Governor's veto, a law concerning transgender minors. The law was challenged in a state trial court. Two named plaintiffs asserted an injury to challenge particular portions of the law. Yet, the judge entered what is in effect a universal injunction. For example, neither of the plaintiffs are student athletes, but the court enjoined provisions of the law concerning athletics.

Today, Ohio Attorney General Dave Yost, through Solicitor General Elliot Gaiser, filed an emergency motion in the Ohio Supreme Court to confine the trial court's "injunction to the limits of judicial power."

Here is a snippet from the Introduction:

A trial court has gone far beyond its power to enter a so-called "universal injunction" against an entire new law, in all applications, as to all the parts of the law—despite the fact that only two named plaintiffs have alleged narrow harms from only one part of the law. . . . The court could have granted preliminary relief to two plaintiffs who alleged only a potential desire for medication, under the principle that injunctions should be no broader than needed to protect plaintiffs. Instead, despite the lack of any allegation—let alone a showing—of harms from the rest of the law to Plaintiffs or other 2 Ohioans, the court pronounced that none of the law can go into effect—leaving Ohio families open to all the harms that their elected representatives voted to avert.

The motion invokes the U.S. Supreme Court's order in Labrador v. Poe, which I wrote about last week:

Indeed, one week ago, on April 15, the U.S. Supreme Court followed these same principles of equity to stay a federal trial court's preliminary injunction against enforcement of the Idaho analogue to Ohio's law—which prohibits performing gender transition services on minors—except as to the parties before that Court. Labrador v. Poe, 601 U. S. ____, 2024 WL 1625724 (S. Ct. April 15, 2024). Because a Franklin County judge issued an injunction unbounded by the clear limits on its power, the Relators seek an emergency writ to conform the injunction to Ohio law.

Justice Gorsuch's concurrence focused on federal courts issuing universal injunctions against state laws, but the reasoning would apply in a similar fashion to state courts issuing universal injunctions against state laws–at least where state courts follow the same principles of Article III jurisprudence. (My understanding is that Ohio courts track Supreme Court doctrine, but I am not an expert in this area of state law.)

The brief also invokes Whole Woman's Health v. Jackson:

Second, twenty-five years ago, this Court improperly issued a writ that effectively enjoined all the State's common-pleas judges from following a set of tort-reform laws even though no plaintiff could show immediate harm from those laws. State ex rel. Ohio Acad. of Trial Laws. v. Sheward, 86 Ohio St. 3d 451 (1999). That was a mistake. See id. at 516 (Moyer, C.J., dissenting); see also Whole Woman's Health v. Jackson, 595 U.S. 30, 39 (2021) ("an injunction against a … court or its machinery would be a violation of the whole scheme of our Government") (internal punctuation omitted). But it did have the imprimatur of four Justices. This case is Sheward squared: a single judge has effectively told every other judge in the State that he or she cannot follow the will of the People as expressed through a legislative supermajority.

The basis of the trial court's ruling was the single-subject provision of the Ohio Constitution, which limits how many subject can be addressed in a single bill. (Judge Sutton wrote about this clause in 51 Imperfect Solutions.) The trial court ruled that denying standing "would insulate legislation from single-subject constitutional scrutiny without class certification or unless a coalition of plaintiffs could be assembled to cover the wide variety of subjects massed in a single piece of legislation."

There is a fascinating question about the relationship between the single-subject rule and the writ of erasure fallacy. Can a court actually "erase" a statute that does not conform with certain procedural requirements under state law? Wouldn't the remedy have to be universal in that regard? Imagine if there was no Enrolled Bill Rule, what would a court do? Stated differently, can a court "erase" an entire statute even if only parts of the statute injure a named plaintiff?

I don't know the answer to these questions, but I think they would likely have to be resolved subsequent to any standing inquiry. A bill has a finite number of provisions. It should not be difficult for sophisticated civil rights groups to find a plaintiff to challenge each provision. When courts issue dubious standing rulings, they often assert that someone must have standing, or that class action certification is too complicated. That's the point. It isn't easy to get into federal (and in some cases, state) court.

Because this issue will be resolved entirely on the basis of state law, an appeal to the United States Supreme Court will not be possible. The state court will have the final say here.