State ex rel. Landis v. Morrow Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Landis v. Morrow Cty. Bd. of Elections, 88 Ohio St.3d 1223, 2000-Ohio-
274.]

THE STATE EX REL. LANDIS v. MORROW COUNTY BOARD OF ELECTIONS ET AL.
[Cite as State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d
1223.]
Attorney General joined as respondent sua sponte -- Civ.R. 21.
(No. 00-157 -- Submitted and decided February 4, 2000.)
IN MANDAMUS.
ON MOTION TO INTERVENE.
__________________

James R. Kingsley, for relator Rick J. Landis.

Gregory A. Perry, Morrow County Prosecuting Attorney, for respondents
Morrow County Board of Elections, and its members, Eleanor Dunbar, Don
Graham, Pauline Riel, and Norma Frazier.

Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., and David
S. Timms, Assistant Attorneys General, for respondent J. Kenneth Blackwell,
Secretary of State, and intervening respondent Ohio Attorney General.
__________________

This cause originated in this court on the filing of a complaint for a writ of
mandamus regarding an expedited election matter. Upon consideration of the
motion to intervene of Ohio Attorney General Betty D. Montgomery,

IT IS ORDERED by the court, sua sponte, that Ohio Attorney General Betty
D. Montgomery be, and hereby is, joined as a respondent pursuant to Civ.R. 21.

IT IS FURTHER ORDERED by the court, sua sponte, that Ohio Attorney
General Betty D. Montgomery shall file any responsive pleading she intends to file
pursuant to S.Ct.Prac.R. X(5), and any evidence and merit brief pursuant to
S.Ct.Prac.R. X(9), within three days after the filing of relator's evidence and brief.

RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.

MOYER, C.J., and DOUGLAS, J., dissent.

LUNDBERG STRATTON, J., would allow the Attorney General to intervene but
not as a party.
__________________

DOUGLAS, J., dissenting. I respectfully dissent. R.C. 2721.12 does not
provide for the Attorney General to be made a party to a cause of action
challenging the constitutionality of a statute. Rather, the section provides that the
Attorney General shall be served and shall be heard (presumably if she chooses to
be heard), and, accordingly, the motion by the Attorney General to intervene is not
in order and should be found to be not well taken. In fact, in the case now before
us, the relator complied with the statute and served the Attorney General with a
copy of the complaint, and now the Attorney General, as a matter of right, shall be
heard without resorting to further motion or pleading.

2

The statute, R.C. 2721.12, makes clear who shall be joined as a "party." If
we expand the universe of "parties" to include the Attorney General, then if she
chooses not to answer, participate, or be heard, would we grant a default judgment
against the nonresponding party--Attorney General? Just to ask the question
answers it.

I would deny the motion and permit the proceedings to be carried out as the
statute contemplates.

3