'^`^kv- ,' IN THE SUPREME COURT OF

State ex rel., TIIOMAS BROWN, et al.,

Petitioners, Case No. 2014-1405 V. Original Action in Mandamus ASHTABULA COUNTY BOARD OF ELECTIONS, et al.,

Respondents.

UNOPPOSED MOTION OF MICHAEL DEWINE TO INTERVENE AND FOR LEAVE TO FILE PROPOSED ANSWER

LOUIS E. GRUBE (0091337 MICHAEL I7EWINE P.O. Box 25 Ohio Attorney General Oberlin, Ohio 44074 Tel: 440-290-9028 ZACHERY P. KELLER (0086930) Fax: 815-572-0034 Assistant Attorney General [email protected] Constitutional Offices Section 30 East Broad Street, 16th Floor Counsel for Relators Columbus, OH 43215-3428 Telephone: (614) 466-2872 NICHOLAS A. IAROCCI (0042729) Facsimile: (614) 728-7592 Ashtabula County Prosecutor zachery. kellerCa^,Ohi oAttorneyGeneral. gov 25 West Jefferson Street Jefferson, Ohio 44047 Counsel for the Ohio Attorney General Tel: 440-576-3662 Fax: 440-576-3600 [email protected]

Counsel f'oN Ashtabula County âefendants

1

" TU,,,,^

fi; , i, IN THE

State ex rel., THOMAS BROWN, et al.,

Petitioners, Case No. 2014-1405 V. Original Action in Mandamus ASHTABULA COUNTY BOARD OF ELECTIONS, el al.,

Respondents.

UNOPPOSED MOTION OF OHIO ATTORNEY GENERAL MICHAEL DEWINE TO INTERVENE AND FOR LEAVE TO FILE PROPOSED ANSWER

Pursuant to Ohio Rule of Civil Procedure 24, applicable through Supreme Court Practice

Rule 12.01, Ohio Attorney General Michael DeWine moves to intervene in this action and for leave to file the attached Proposed Answer. The undersigned has contacted counsel for both

Relators and Respondents, both. of whom consent to intervention. A memorandum in support is attached.

Respectfully submitted,

MICHAEL DEWINE Ohio Attorney General

ZACHEV P. KELLER (0086930) Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, OH 43215-3428 Telephone: (614) 466-2872 Facsimile: (614) 728-7592 [email protected]

Counselfor the Ohio Attorney General

2 MEMORANDUM IN SUPPORT

Although this case is styled as an action in mandamus, at its core, it is a challenge to the

constitutionality of an Ohio law. Relator Thomas Brown lost a 2014 primary election, but now

seeks to avoid application of R.C. 3513.04-Ohio's sore-loser provision-and iun for another

position in 2014. He maintains that R.C. 3513.04 violates both the and Ohio

Constitutions. Respondents have indicated that they do not intend to defend R.C. 3513.04

Respondents do consent, however, to intervention by the Attorney General. Relators also

consent to intervention.

Considering the nature of Relators' action and the above circumstances, the Court should

allow the Attorney General to participate in this case and oppose Relators' request for relief.

Absent intervention, a presuinptively constitutional Ohio statute is likely to go undefended.

Accordingly, the Attorney General moves to intervene and for leave to file the attached Proposed

Answer.

1. Background

Mr. Brown lost the Democratic Party primary election for Ashtabula County Court of

Common Pleas on May 6, 2014. Despite this defeat, Mr. Brown indicates that he submitted

nominating petitions for election to the Ashtabula County Court Western Area Division in July

2014. See generally R.C. 1907.13 (describing nomination procedure for county court judges).

According to the Complaint, the Ashtabula County Board of Elections determined that

R.C. 3513.04 prohibited Mr. Brown's attempted candidacy for the Ashtabula County Court

Western Area Division. The statute provides in pertinent part:

No person who seeks party nomination for an office or position at a primary election by declaration of candidacy ... shall be permitted to become a candidate by nominating petition ... at the following general election for any office other

3 than the office of member of the state board of education, office of member of a city, local, or exempted village board of education, office of member of a governing board of an educational service center, or office of township trustee.

R.C. 3513.04.

Mr. Brown, along with two other Relators, brought this original action in mandamus on

August 13, 2014 seeking to compel Respondents-the Ashtabula County Board of Elections and

its Director-to consider his nominating petitions. Relators do not contest Respondents'

determination that R.C. 3513.04 bars Mr. Brown's second 2014 candidacy. Instead, Relators

allege that R.C. 3513.04 is unconstitutional. Relators specifically maintain that R.C. 3513.04

violates the First and Fourteenth Amendments of the United States Constitution as well as

Article I Sections 2, 3, and 11 of the Ohio Constitution.

In conjunction with filing their action, Relators provided notice to the Attorney General

pursuant to R.C. 2721.12 (requiring service on the Attorney General for constitutional

challenges). Relators' counsel specifically sent the Attorney General's Office a copy of the

Complaint in mandamus, which the Office received on August 15, 2014. Following receipt of

the Complaint, the Attorney General's Office communicated with the Ashtabula County

Prosecutor's Office. The Prosecutor's Office indicated that Respondents were not planning to

defend R.C. 3513.04 in this action, but that they consent to the Attorney General's intervention.

Relators' counsel has also stated that Relators consent to intervention.

II. Argument

Intervention here is proper, both as a matter of right and also permissively. See Civ.R. 24.

Upon a timely application, the Court will grant intervention as a matter of right when (1) a statute confers a right to intervene or (2) a party has an interest in the subject of the action that will not be adequately represented by existing parties. Civ.R. 24(A). Similarly, the Court may

4 grant permissive intervention if (1) a statute grants a conditional right to intervene or (2) an

applicant's defense has "a question of law or fact in common" with the main action. Civ.R.

24(B). This Court "°construe[s] Civ.R. 24 liberally to permit intervention." State ex rel. Merrill

v. Ohio Dept. ofNatural Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41.

Under the circumstances of this case, the Court should allow intervention. The Attorney

General's interest in the present action is apparent. As Ohio's "chief legal officer", R.C. 109.02,

the Attorney General has inherent duties to represent the State and defend Ohio law.

because the Relators' mandamus action stems from a constitutional challenge to Ohio law, the

Attorney General's participation is natural.

Consistent with the Office's responsibilities, the Attorney General has a statutory right to

participate in actions challenging the constitutionality of Ohio statutes. See R.C. 2721.12(A).

Specifically, in declaratory judgment actions, "if any statute ... is alleged to be unconstitutional,

the attorney general also shall be served with a copy of the complaint in the action or proceeding

and shall be heard." Id. (emphasis added). Although this case arises in mandamus, the principle

behind the statute still applies: the Attorney General should receive an opportunity to be heard

regarding the constitutionality of Ohio statutes.

Even assuming that (because the constitutional challenge is raised in mandamus)

R.C. 2721.12 does not give rise to intervention as a matter of right, permissive intervention is appropriate. Becau.se Relators' mandainus action rests on constitutional challenges to

R.C. 3513.04, the arguments the Attorney General seeks to present share common questions of law and fact with the main action.

Finally, the procedural posture of this action weighs strongly in favor of intervention.

Given the timing of Relators' filing, this case invokes the Court's expedited election procedures.

5 See S.Ct.Prac.R. 12.08. Moreover, as detailed above, Respondents have stated that they do not

intend to defend the statute in question. Combining these factors, without intervention the Court

will face an expedited challenge to R.C. 3513.04 with no party defending the statute. Allowing the Attorney General to intervene will ensure the benefits of the adversarial process.

III. Conclusion

For the above reasons, the Ohio Attorney General moves to intervene in this action and for leave to file the attached Proposed Answer. If the Court deems that intervention is inappropriate, the Attorney General requests in the alternative to participate as amicus curiae.

Respectfully submitted,

MICHAEL DEWINE Ohio Attorney General ^ ,.. ZACHERY, KK LLER (0086930) Assistant Aforney General Constitutional Offices Section 30 East Broad Street, 16`h Floor Columbus, OH 43215-3428 Telephone: (614) 466-2872 Facsimile: (614) 728-7592 zachery. keller@OhioAttorneyGeneral. gov

Counsel for the Ohio Attorne}l General

6 CERTIFICATE OF SERVICE

I hereby certify that on August 20, 2014, the foregoing Motion of Ohio Attorney General

Michael De Wine to Intervene and for Leave to File Proposed Answer was electronically filed and served upon the following by regular, U.S. Mail, postage prepaid and by electronic mail:

LOUIS E. GRUBE (0091337 NICHOLAS A. IAROCCI (0042729) P.O. Box 25 Ashtabula County Prosecutor Oberlin, Ohio 44074 25 West Jefferson Street Tel: 440-290-9028 Jefferson, Ohio 44047 Fax: 815-572-0034 Tel: 440-576-3662 [email protected] Fax: 440-576-3600 [email protected] Counselfor Relators Counsel for Ashtabula County Defendants

ZACH P. KELLER (0086930) Assistant Attorney General

7