Case No tt gbc *uprerne Court of tjio. SUSAN GWINN, et al., Appellees, OHIO ELECTIONS COMMISSION, et al., Appellants.

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1 Case No tt gbc *uprerne Court of tjio SUSAN GWINN, et al., Appellees, V. OHIO ELECTIONS COMMISSION, et al., Appellants. On Appeal from the Franklin County Court ofappeals, Tenth Appellate District, App. Case No. 09AP-792 MEMORANDUM CONTRA OF APPELLEES TO MOTION TO AMEND CASE CAPTION Donald J. McTigue ( ) Mark A. McGinnis ( ) J. Corey Colombo ( ) MCTIGUE & MCGINNIS LLC 550 East Walnut Street Columbus, Ohio Tel: (614) Fax: (614) Counsel forappellees David A Yost ( ) Special Athens Cty. Prosecuting Attorney Kyle E. Rohrer ( )* Asst. Special Athens Cty. Prosecuting Atty. Delaware County Prosecutor's Office 140 N. Sandusky Street, 3rd Floor Delaware, Ohio Tel.: (740) Fax.: (740) Co unsel for Appellan ts * Counsel ofrecord JP:a CLERK OF COURT I SUPRFPJlF CpURT OF Hi0

2 A. RESPONSE TO MOTION TO AMEND THE CASE CAPTION 1 Appellant Yost's Motion to "Amend the Case Caption" raises so many issues other than amending the case caption it is difficult to know where to begin in countering it. Indeed, from the outset Appellees assert that this case should be captioned exactly as it was in the decision from which the purported appeal was taken, identifying the opposing parties as "Ohio Elections Commission et al.,." The instant Motion to Amend the Caption seeks relief far greater than its name implies, requesting that this Court ratify the prior filings as though they were filed by the Intervenor and as though they were filed on behalf of the Intervenor, rather than on behalf of the Ohio Elections Commission as represented. Rather than cite to a single case supporting why such extraordinary and unrelated relief should be granted to save a defective Notice of Appeal Intervenor argues: (1) that he is a party to this action - a fact with which there is no disagreement (it is because he is a party to this action that he should have filed the notice of appeal on his own behalf rather than on behalf of the Ohio Elections Commission, a party which he does not represent), and; (2) that this Court should deny Appellees' motions to disqualify counsel and strike the notice of appeal (arguments which should properly have been put before the Court in timely filed memoranda contra, as they offer nothing to ' Although the Motion to Amend the Case Caption does not contain a valid certificate of service, Appellees received the document via U.S. mail on July 14, By responding herein, Appellees do not waive their right to file a motion to strike the instant motion for a failure to include a signed certificate of service as required by S.Ct. R. XIV, Sec. 2(C)(1).

3 support the relief the motion purports to seek). In addition, to the extent the motion does seek to correct the case caption, it is untimely and out of rule as S.Ct. R. 8 provides that parties who wish to make corrections to previously filed documents must file the revised documents and copies that completely incorporate the corrections and revisions. Yet, no the Motion did not include a revised Notice of Appeal, Memorandum in Support of Jurisdiction, or any other previous filing. Further, any corrected document generally must be filed within the time for filing the original document. [Id] Accordingly, no such change can be made to the Notice of Appeal, the basis for jurisdiction in this case. Despite Intervenor's continuing efforts to obscure the issues before this Court, it is apparently undisputed that neither Intervenor Yost, nor the Ohio Elections Commission, sought to appeal this case prior to the expiration of the deadline for doing so. Rather, Mr. Rohrer filed a Notice of Appeal on behalf of Mr. Yost, purportedly on behalf of the Ohio Elections Commission, a client that admittedly neither Mr. Yost, nor Mr. Rohrer, represented. Mr. Yost's Motion vaguely alludes to this jurisdictional conundrum by requesting that this Court determine that "all prior or subsequent filings made by Mr. Yost or Mr. Rohrer be considered made on behalf of Appellant and Intervenor Yost and not the Ohio Elections Commission." [Motion to Amend Case Caption, p.1.1 Not only does this relief have nothing to do with amending the case caption, it expressly demonstrates Intervenor's understanding that it is

4 he, and not the Ohio Elections Commission, that is the Appellant in this matter. His dillema is that neither the Intervenor, nor that Ohio Elections Commission, ever sought such an appeal. Rather, the Intervenor's counsel sought an appeal on behalf of the Ohio Elections Commission. Recognizing that no appeal to this Court has been perfected, nor can be perfected timely, Intervenor now asks this Court to ratify the original unauthorized filing of the Notice of Appeal under the guise of amending the caption. To be clear, the resolution of the pending Motion to Disqualify, Motion to Strike the Notice of Appeal, and Motion to Amend the Case Caption, all hinge on the answer to the same question - whether or not the Notice of Appeal filed by one party on behalf of another party and without authorization can form the basis for jurisdiction in this Court. Knowing that it obviously cannot, Intervenor's Motion to Amend the Case Caption is replete with arguments related to superfluous issues and facts wholly unrelated to the relief sought, to wit. 1. The Ohio Attorney General did not take part in this case in the Franlrlin County Common Pleas Court or the Tenth District Court ofappeals. [Motion to Amend Case Caption, p.2.1 This is a self defeating argument by Intervenor. Why then, would the state have filed a notice of appeal in this Court seeking to appeal a case in which it had not previously participated? The undisputed fact is that the Intervenor, who was unsuccessful in the Court of Appeals, wished to seek an appeal in this Court. All the Intervenor

5 needed to do was timely file a Notice of Appeal on his on behalf in this Court. As Intervenor admits, he was a party to the case; he was adversely affected by the decision, and was thus free to seek an appeal in this Court in his own name. Instead, for some unknown reason, the Intervenor filed a Notice of Appeal on behalf of the Ohio Elections Commission, whom he did not represent and who, by his own admission, had never participated in this case. Now the Intervenor asks this Court to rewrite history in order to save his admittedly defective filing. 2. Appellee Gwinn never raised the improper counsel issue in the Tenth District Court ofappeals. [Motion to Amend Case Caption, p.2] It is true that Appellee Gwinn did not object to that which had not yet occurred. Indeed, there was little to object to given that Intervenor never purported to represent any client other than himself in the proceedings before the Tenth District Court of Appeals. When Mr. Rohrer and Mr. Yost filed the Notice of Appeal herein purportedly on behalf of the Ohio Elections Commission, who they did not represent, counsel for Appellee Gwinn immediately filed a Motion to Disqualify and a Motion to Strike. 3. This Court should deny Appellee's Motions to disqualify counsel and strike the notice of appeal and address the substance of the case as it is one of great public concern. [Motion to Amend Case Caption, p.3.1 This argument, Section 112 of Intervenor's Motion, has nothing to do with whether 2 There are two separate arguments labeled Section II in Intervenor's Motion, Appellees' arguments herein refer to the second Section II beginning on page 3. 4

6 or not this Court should amend the case caption. Rather, it is an attempt to reply to Appellees' motions untimely and out of rule. If Intervenor wished to oppose Appellees' motions to disqualify and vacate, all Intervenor needed to do was file memoranda opposing the motions within 10 days of the date the motions were filed. [S.Ct. R. XIV, Sec. 4.1 Appellees motions were filed on June 23, In addition to the fact that the July 12, 2010 filing was well beyond the ten day response time contemplated by this Court's rules, it is obviously not germane to respond to one motion in the body of a separate motion for separate relief. The Court need not consider the arguments contained in the second Section II of Intervenor's Motion. 4. "Whi]e an error was made in the captioning of the appeal, the substance of the Memorandum in Support of Jurisdiction served to adequately notify the Appellee and the Court of'the grounds of"the appeal Appellee suffered no prejudice from the error..." [Motion to Amend Caption, p.3.] Appellees are well aware of the grounds of the appeal. Appellees have never claimed to have been prejudiced by an error in the captioning of the appeal. Indeed, Appellees are well aware of who the parties to this case are and by whom each of those parties is represented in this case. However the case is captioned, the issue is not one of notice of the grounds of the appeal, but rather that the Court lacks the jurisdiction to reach the consideration of those grounds because no appeal has been timely perfected in this Court. 5

7 5. Appellee fails to present the Court with a single case mandating the dismissal of an appeal due to an error in the caption. [Motion to Amend Case Caption, p.4.] Indeed. The reason for the failure to present this Court with any such case is because Appellees have never asserted that this Court should dismiss this appeal due to an error in the caption. Rather, the Court should dismiss the case because no appeal has been timely filed by a party. Mr. Rohrer filed a Notice of Appeal on behalf of the Ohio Elections Commission, not on behalf of the Intervenor. Now, the Intervenor is asking this Court to ratify that filing as though it was offered by Mr. Yost on behalf of the Intervenor - this relief has nothing to do with an error in the caption and everything to do with the Intervenor's wholesale failure to timely seek an appeal on behalf of his client. However the case is captioned, it does not change the fact that Mr. Rohrer and Mr. Yost filed a Notice of Appeal with this Court on May 24, 2010 where they expressly asserted, "Appellant, the Ohio Elections Commission, hereby gives notice of appeal to the Supreme Court of Ohio..." [Notice ofappeal, p.1.] Further, as the filer of the Notice of Appeal, it was Mr. Yost and Mr. Rohrer that created the first caption in this case. In fact, the Court of Appeals decision from which the appeal is taken expressly provides "Ohio Elections Commission et al.," in its caption. Any error related to the caption from which Intervenor now seeks relief is his own. Intervenor chose to caption the case differently than the decision from which the purported appeal was taken. Intervenor chose to represent to this Court 6

8 that he represented the Ohio Elections Commission when it is clear that he does not. Now Intervenor must live with the consequences of those choices. The appeal should be dismissed. A. CONCLUSION For the reasons discussed above, Appellees assert that the relief sought is untimely and out of rule. However, Appellees do not object to the amendment of the case caption to reflect the caption of the judgment from which the purported appeal was taken. Appellees further submit that Intervenor's request that all prior and subsequent pleadings be treated as the representations of only Appellant and Intervenor Yost are outside of the relief sought by the instant motion and further, for the reasons discussed above, should be denied. Donafd J. Mcrti e 23949) Mark A. McGinnis ( ) John C. Colombo ( ) McTigue & McGinnis LLC 550 East Walnut Street Columbus, Ohio Tel: (614) Fax: (614) Counsel forappellees 7

9 CERTIFICATE OF SERVICE I hereby certify that the foregoing wa served via ordinary U.S. mail, postage prepaid, upon the following this UUM day of July, 2010: Erik Gale Assistant Ohio Attorney General 30 E. Broad Street Columbus, Ohio Counsel for Ohio Elections Commission Kyle Rohrer David A. Yost Delaware County Assistant Prosecuting Attorney 140 N. Sandusky Street Delaware, Ohio Mark A. McGinnis Attorney at Law 8