dissenting.
{¶ 56} The majority errs in reaching the merits of the issue of the constitutionality of R.C. 4123.54, as amended by 2000 Am.Sub.H.B. No. 122. Two reasons support this conclusion: (1) the relators lack standing, and (2) the case before us does not present facts justifying the exercise of the original jurisdiction vested in this court by Section 2(B)(1), Article IV of the Ohio Constitution. Moreover, upon resolving to reach the merits in this case, the majority errs in finding the current statute unconstitutional. I therefore respectfully dissent.
I
Standing
{¶ 57} In Ohio, it is well established that standing exists only where a litigant “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.” (Emphasis added.) State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 469-470, 715 N.E.2d 1062. Similarly, an organization or association attempting to litigate on behalf of its members must establish that its members have suffered actual or concrete injury, rather than an abstract or suspected injury, in order to justify a finding of standing. Ohio Contrs. Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, 643 N.E.2d 1088.
{¶ 58} The relators herein cannot meet these burdens. They do not allege that any workers’ compensation claims have been filed in which a party has urged the application of any of the presumptions created by R.C. 4123.54(B). It follows *516that the relators do not allege facts showing that any of their members have been injured or are under an imminent threat of suffering a concrete injury.
{¶ 59} Rather the relators speculate that, sometime in the future, H.B. 122 “will be applied” to deny future workers’ compensation claims, and “will be used by Employers” to compel workers to undergo drug testing. They claim that the provisions of H.B. 122 “potentially” apply to every injured worker. Perhaps most illustrative of the speculative nature of the relators’ claim of injury is their assertion that the respondents, the Ohio Bureau of Workers’ Compensation, its administrator, and the Industrial Commission, “will apply the presumptions of R.C. 4123.54, as amended, to deny injured workers who have otherwise valid claims the right to receive workers’ compensation.” Because these assertions fall far short of the actual or imminent concrete injury required by long-standing Ohio law to justify recognition of standing, the court should dismiss this case.
{¶ 60} In Sheward, however, the court also recognized and applied a “public action” exception to the traditional standing rule, and allowed several Ohio organizations and a private individual to present a constitutional challenge to comprehensive tort reform legislation enacted as 1996 Am.Sub.H.B. No. 350 as an action in mandamus in this court. The relators in the case at bar argue that Sheward justifies a finding of standing in their challenge to H.B. 122.
{¶ 61} My vehement opposition to Sheward is well documented, not only in my written dissent to the decision itself, id. at 516-531, 715 N.E.2d 1062, but in separate opinions written thereafter. See Burger v. Cleveland Hts. (1999), 87 Ohio St.3d 188, 198, 718 N.E.2d 912 (Moyer, C.J., dissenting); State ex rel. United Auto Aerospace & Agricultural Implement Workers of Am. v. Ohio Bur. of Workers’ Comp., 95 Ohio St.3d 408, 2002-Ohio-2491, 768 N.E.2d 1129, ¶ 17-28 (Moyer, C.J., dissenting).
{¶ 62} With the passage of time, other observers have joined me in vociferously criticizing Sheward. The decision has been characterized as “an example of blatant judicial violation of jurisdictional doctrine.” Loeb, Abuse of Power: Certain State Courts are Disregarding Standing and Original Jurisdiction Principles So They Can Declare Tort Reform Unconstitutional (2000), 84 Marq.L.Rev. 491, 492. It has been deemed “a manifestly gross example of political opportunism, allowing the majority to invalidate a disfavored law using a questionable approach.” Tracy, Ohio Ex Rel. Ohio Academy of Trial Lawyers v. Sheward: The End Must Justify the Means (2000), 27 N.Ky.L.Rev. 883, 885. A writer in the Harvard Law Review characterized the reasoning of Sheward as “awkward[ ]” and “overreaching” and as having “misappropriated” constitutional principles. Note, State Tort Reform — Ohio Supreme Court Strikes Down State General Assembly’s Tort Reform Initiative (2000), 113 Harv.L.Rev. 804, at 804, 807. See, also, Black, State ex rel. Ohio Academy of Trial Lawyers v. Sheward: *517The Extraordinary Application of Extraordinary Writs and Other Issues; The Case That Never Should Have Been (2001), 29 Cap.U.L.Rev. 433; Werber, Ohio Tort Reform in 1998: The War Continues (1997), 45 Cleve.St.L.Rev. 539. Nevertheless, until overruled, Sheward must be acknowledged as precedent.
{¶ 63} In summarizing its holding, the court wrote in its syllabus in Sheward that “[w]here the object of an action in mandamus and/or prohibition is to procure the .enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that the relator is an Ohio citizen and, as such, interested in the execution of the laws of this state.” (Emphasis added.) Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, paragraph one of the syllabus. However, contrary to this broad language, it is clear from the express representations made in the Sheward opinion, as well as its context, that the term “public right” as used in the syllabus requires more than a showing that a statute of questioned constitutionality is of widespread public interest, or even that it potentially may affect a large number of Ohio citizens.
{¶ 64} In Sheward the relators alleged that Am.Sub.H.B. No. 350 represented a legislative assault on the doctrine of separation of powers, a fundamental principle of our democracy. The court characterized the General Assembly as having “reenacted legislation which this court has already determined to be unconstitutional and/or in conflict with the rules we have prescribed pursuant to Section 5(B), Article IV of the Ohio Constitution governing practice and procedure for Ohio courts.” Id. at 474, 715 N.E.2d 1062. The court determined that the relators’ challenge to the comprehensive legislation contained in Am.Sub.H.B. No. 350 raised issues “of such a high order of public concern as to justify allowing this action as a public action.” Id. It noted that “[t]he people of this state have delegated their judicial power to the courts, and have expressly prohibited the General Assembly from exercising it,” and observed that “it is difficult to imagine a right more public in nature than one whose usurpation has been described as the very definition of tyranny.” Id.
{¶ 65} In short, the majority in Sheward believed that the legislative branch of government, in enacting Am.Sub.H.B. No. 350, had engaged in misconduct of such magnitude that the general rules of standing should be disregarded in order to protect the very fabric of our democracy. Inappropriately in my view, it deemed this “reenactment” to be an encroachment by the General Assembly into the judicial sphere, violating the principle of separation of powers.
{¶ 66} However, the majority expressly assured the bench and bar that it would “entertain a public action only ‘in the rare and extraordinary case’ where the challenged statute operates, ‘directly and broadly, to divest the courts of judicial power.’ ” (Emphasis sic.) Id. at 504, 715 N.E.2d 1062. It specifically *518represented that it would “not entertain a public action to review the constitutionality of a legislative enactment unless it is of a magnitude and scope comparable to that of Am.Sub.H.B. No. 350.” Id. We now know that this express promise of future judicial restraint made by the majority in Sheward was a hollow one.
{¶ 67} Nothing even approaching the circumstances described in Sheward exists in the case before us. It is true that the workers’ compensation system in Ohio is of great importance to thousands of Ohio workers and employers. This does not mean that every time the General Assembly revises some aspect of workers’ compensation law, an action challenging its constitutionality is a “public action” involving a “public right.” If so, then virtually any legislative enactment affecting the public can be short-circuited to this court for immediate constitutional review.
{¶ 68} In my dissent in Sheward, I expressed my concern that thereafter “those dissatisfied with enactments of the General Assembly * * * will no longer consider a writ of mandamus or prohibition to be an extraordinary remedy: instead they will consider them the remedy of choice.” Id. at 517, 715 N.E.2d 1062. Unfortunately, today my prognostication has been realized.
{¶ 69} I continue to believe that Sheward was wrongly decided. However, even assuming the validity of Sheward, no fundamental “public right” analogous to that found to exist in Sheward exists in the case at bar. Or, perhaps more accurately, the majority’s extension of the public-right exception of Sheward to the case at bar allows that exception to engulf traditional standing rules.
{¶70} The relators do not allege facts justifying a finding that they have standing to bring this action. The case should therefore be dismissed.
II
Wrongful Exercise of Original Jurisdiction
{¶ 71} In order to be entitled to a writ of mandamus, the relator must establish (1) that the relator has a clear legal right to the relief prayed for, (2) that the respondent has a clear legal duty to perform the requested act, and (3) that the relator has no plain and adequate remedy at law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129; R.C. Chapter 2731.
{¶ 72} As I noted in my dissent in Sheward, “[t]he Ohio Constitution does not vest this court with original jurisdiction to issue either a declaratory judgment or injunctive relief.” Id., 86 Ohio St.3d at 516, 715 N.E.2d 1062 (Moyer, C.J., dissenting), citing Section 2, Article IV, Ohio Constitution; State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631. As in Sheward, the action before us is in effect an action seeking declaratory judgment *519and injunctive relief and does not fall within the parameters of our original jurisdiction in mandamus.
{¶ 73} Moreover, as in Sheward, the relators before us have an adequate remedy at law in the form of resort to the trial courts of the state, followed by appellate review. If R.C. 4123.54, as amended by H.B. 122, is indeed unconstitutional, that conclusion would be reached through the ordinary course of law where issues of fact and law are determined in the first instance by a trial court in a particular case, followed by appellate review. The original jurisdiction of this court to issue the extraordinary writ of mandamus established in the Ohio Constitution does not exist as a mechanism to bypass regular procedure to allow claims of unconstitutionality to be heard initially in this court. As I stated in Sheward, the trial courts of this state are the appropriate forum for initial determination of the validity of the relators’ arguments, and even then only if they are presented as part of an actual justiciable controversy.
{¶ 74} In addition, the relators have neither alleged nor established that the respondents have failed to perform a duty required of them by law, that being a fundamental requisite for the proper exercise of original jurisdiction in mandamus by this court. The relators allege that “[b]eeause R.C. 4123.54, as amended, is unconstitutional, Respondents have a clear legal duty to refuse to apply it and to instead apply the previous version of R.C. 4123.54.” The simple response to this contention is that there is nothing in the record to demonstrate that the respondents have yet been asked either to apply or to disregard the presumptions established in R.C. 4123.54. Because the respondents have not yet been presented with a case in which the presumptions of R.C. 4123.54, as amended by H.B. 122, have been in issue, it is eminently clear that the respondents have not yet failed to perform a duty required of them under the amended statute. Thus, they are under no clear legal duty to apply the statute at all. The conclusion is unavoidable that the purpose of this action is to obtain an advisory declaration of unconstitutionality before amended R.C. 4123.54 is implemented. Such an action seeks declaratory and injunctive relief, which this court has no original jurisdiction to grant.
{¶ 75} Moreover, as noted, relators argue that the respondents will have a clear legal duty to implement the pre-H.B. 122 version of R.C. 4123.54 if and when they are called upon to apply the presumption contained in the amended statute. Implicit in this assertion is the premise that the BWC should itself review the constitutionality of H.B. 122, conclude that it is unconstitutional, and disregard it. However, the BWC and the Industrial Commission do not even have the authority, much less a duty, to adjudicate the constitutionality of duly enacted legislation. Such a contention is contrary to well-settled law. State ex rel. Columbus S. Power Co. v. Sheward (1992), 63 Ohio St.3d 78, 81, 585 N.E.2d *520380, 382 (“It is settled that an administrative agency is without jurisdiction to determine the constitutional validity of a statute”). It follows that, if mandamus is appropriate in the case at bar because the respondents, as administrative agencies, have a clear legal duty to follow only constitutional statutes, then mandamus is appropriate in every case where the constitutionality of a statute prescribing procedures or imposing duties upon any governmental official is questioned. I cannot accept as valid such a fundamental restructuring of the law of constitutional review.
{¶ 76} The relators do not allege facts supporting an exercise of this court’s original jurisdiction to issue an extraordinary writ of mandamus. The case should therefore be dismissed.
Ill
Constitutionality
{¶ 77} The court should not reach the issue of the constitutionality of H.B. 122 at this time. It nevertheless has determined to do so. I therefore write to express my disagreement with the majority’s resolution of this substantive issue as well.
{¶ 78} I acknowledge that reasonable minds may well differ as to the wisdom of the amendments to R.C. 4123.54 made by H.B. 122, now codified as R.C. 4123.54(B). However, in the absence of unconstitutionality, this court does not have authority to invalidate the policy judgments of the General Assembly as incorporated into statutory law.
{¶ 79} R.C. 4123.54(B) establishes rebuttable presumptions where a worker tests over prescribed drug or alcohol limits, or refuses drug testing after an injury. Therefore, the change accomplished by H.B. 122 does no more than reallocate the burden of going forward with evidence in workers’ compensation claims where an issue of the worker’s possible intoxication as a cause of the injury has been framed. In so doing, the General Assembly has placed the burden of proving a worker’s condition where alcohol or illegal drug intoxication may have existed at the time of an injury upon the party most able to provide evidence of that condition. Such a change is well within the constitutional authority of the General Assembly, and the majority therefore errs in invalidating R.C. 4123.54(B).
{¶ 80} The majority reaches its conclusion of unconstitutionality based on its analysis of questions of statutory interpretation that have not been presented or fully adjudicated. The syllabus to the majority opinion herein states that “2000 Am.Sub.H.B. No. 122 * * * permits the warrantless drug and alcohol testing of injured workers.” In drawing this conclusion the majority accepts relators’ *521proposition that H.B. 122 creates rights in employers to demand, and a requirement in employees to submit to, drug testing. However, nothing in the language of the statute authorizes anyone, and specifically Ohio employers, to require employees to submit to drug testing: the word “employer” appears nowhere in R.C. 4123.54(B).
{¶ 81} Missing from this rationale for its conclusion is any expression of concern by the majority for the workers whose health and safety may be jeopardized by the errant conduct of another employee who may be under the influence of alcohol or drugs. Why the extraordinary concern for an employee whose conduct may suggest a drug test is warranted at the expense of other employees whose conduct is appropriate?
{¶ 82} R.C. 4123.54(B) is drafted in the passive voice. It provides, for example, that the rebuttable presumptions created by the statute exist “provided that an employee is given, or has been given notice” of test results or the consequences of a refusal to be tested. (Emphasis added.) Similarly, the statute creates a rebuttable presumption where an employee “refuses to submit to a requested chemical test,” but does not identify the person or persons who might make such a request. R.C. 4123.54(B)(5). It is only the relators’ interpretive gloss on the statute that supports their premise that R.C. 4123.54(B) “permits” or requires testing. In fact, the statute does not do so, although it does rest on an assumption that drug testing has been, or will be, requested by some unidentified actor.
{¶ 83} Similarly, the conclusions made by the majority that “under H.B. 122, every Ohio worker injured on the job must submit to an employer-requested chemical test” and that the rebuttable presumption created in R.C. 4123.54(B) is “the hammer that forces an employee to take” a drug test are unfounded. R.C. 4123.54(B) does not require an injured employee to take a test — it imposes an evidentiary consequence to a worker’s refusal to submit to a drug test. Any worker may refuse drug testing and choose instead to proceed with his claim, confident that his testimony, or that of others, would rebut the presumption of impairment or of impairment as a causal factor in his injury. The majority’s contrary conclusions assume the existence of provisions that the General Assembly simply did not adopt.
{¶ 84} Several states, including Alaska, Utah, and Arizona, have in fact enacted statutes governing an employer’s right to demand drug tests of its employees, and providing guidelines and employee protections for drug testing by employers. See Alaska Stat. 23.10.600 et seq.; Utah Code Ann. 34-38-1 et seq.; Ariz.Rev.Stat.Ann. 23-493.01 et seq. See, generally, Zarou, The Good, the Bad and the Ugly: Drug Testing by Employers in Alaska (1999), 16 Alaska L.Rev. 297.
Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J. Jaffy, for relators Ohio APL-CIO and William Burga. Steve E. Mindzak, for relators United Auto Aerospace & Agricultural Implement Workers of America, Region 2 and Region 2-B. Betty D. Montgomery, Attorney General, Cheryl J. Nester, Assistant Attorney General, and Elise W. Porter, Assistant Solicitor, for respondents. Philip J. Fulton & Associates, Philip J. Fulton, William A. Thorman III and Jonathan H. Goodman, in support of relators for amicus curiae Ohio Academy of Trial Lawyers. Jillian S. Davis and Raymond Vasvari, in support of relators for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc. Cloppert, Portman, Sauter, Latanick & Foley, Frederic A. Portman and Christopher A. Flint, in support of relators for amicus curiae Ohio Education Association. Joyce Goldstein & Associates, L.P.A., and Joyce Goldstein, in support of relators for amicus curiae Service Employees, International Union Local 47. Joseph P. Sulzer, in support of relators for amicus curiae various Members of the Ohio General Assembly. Crosby, O’Brien & Associates and Elizabeth A. Crosby, in support of respondents for amicus curiae Greater Cleveland Growth Association Council of Smaller Enterprises.{¶ 85} The General Assembly, however has not enacted legislation similar to the Alaska, Utah, and Arizona statutes, and the legality of an employer’s ability to demand drug testing in Ohio is dependent upon the common law and any contractual obligations that may have been negotiated. The relators in this case are, in effect, issuing a preemptive strike challenging the constitutionality of a statutory scheme that simply does not exist in Ohio statutory law.
{¶ 86} I therefore dissent from the majority’s holding that R.C. 4128.54, as amended by H.B. 122, is unconstitutional.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.