AUG CLERK OF COURT SUPREME COURT OF OHIO. COUNSEL FOR RESPONDENTS University of Cincinnati and The Ohio State University

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1 IN THE SUPREME COURT OF OHIO YVETTE BARBARA BALDWIN, Relator, CASE NO vs. CASE WESTERN RESERVE UNIVERSITY, et al., Respondents. Original Action in Mandamus RESPONDENT UNIVERSITY OF CINCINNATI AND THE OHIO STATE UNIVERSITY'S MOTION TO DISMISS SHERYL CREED MAXFIELD First Assistant Attorney General SCOTT CAMPBELL ( ) (COUNSEL OF RECORD) Assistant Attomey General Education Section 30 East Broad Street, 16"' Floor Columbus, Ohio Tel: (614) Fax: (866) state. oh.us COUNSEL FOR RESPONDENTS University of Cincinnati and The Ohio State University 7 LDD AUG CLERK OF COURT SUPREME COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO YVETTE BARBARA BALDWIN, Relator, CASE NO VS. CASE WESTERN RESERVE UNIVERSITY, et al., Respondents. RESPONDENT UNIVERSITY OF CINCINNATI AND THE OHIO STATE UNIVERSITY'S MOTION TO DISMISS Now COMES RESPONDENTS UNIVERSITY OF CINCINNATI AND THE OHIO STATE UNivERSiTY, by and through counsel, and moves this Court, pursuant to Civ. R. 12(B)(6), for an order dismissing Relator's Complaint with prejudice. The attached memorandum supports this Motion. Respectfully submitted, SHERYL ^REEp MAXFIELD First Assis antattorney General SCOTY M.' CAMPBELL ( ) Assistant Attorney General Education Section 30 East Broad Street, 16`h Floor Columbus, Ohio (614) Counsel for Respondents University of Cincinnati and The Ohio State University 2

3 MEMORANDUM 1. STATEMENT OF THE FACTS On July 14, 2008, Relator Yvette Barbara Baldwin, filed a Complaint for a writ of mandamus seeking the Ohio Supreme Court to investigate her failure to be accepted into any of the fourteen law schools listed in the Complaint. This motion to dismiss is filed on behalf of the University of Cincinnati ("UC") and The Ohio State University ("OSU"). Relator's filing failed to provide a Complaint against the named Respondents. The filing simply consisted of two identical affidavits and exhibits. The affidavit provides that Ms. Baldwin has applied to 25 law schools between 2007 and Ms. Baldwin provides "I have received approximately 14 denials for gaining an acceptance letter." Ms. Baldwin expected that she would receive at least 3 approvals out of 14 responses. The affidavit asks "the Supreme Court of Ohio to thoroughly and quickly investigate the reasoning's behind the decisions by the law schools to deny me acceptance; for the reason being that I need to make certain that the denials are not based on some fonn of black ball request or discrimination." The filing provides no allegations against UC or OSU and no allegations of discrimination. Relator's filing fails to state a claim and should be dismissed. II. LAW AND ARGUMENT A. Standard of Review A motion to dismiss pursuant to Civ. R. 12(B)(6) tests the sufficiency of the Petition. State ex rel. Boggs v. Springfield Local School Dist. Bd of Edn. (1995), 72 Ohio St. 3d 94, 95, 647 N.E.2d 788, citing State ex rel. Hanson v. Guernsey Cty. Bd ofcommrs. (1992), 65 Ohio St. 3d 545, 548, 605 N.E.2d 378. In order for a court to dismiss a Petition for failure to state a claim 3

4 upon which relief can be granted, it must appear beyond doubt from the Petition that the Relator can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 327 N.E.2d 753, syllabus. For purposes of the motion, the court must presume that all factual allegations of the Petition are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190, 532 N.E.2d 753. The movant may not rely on allegations or evidence outside the Petition. State ex rel. Boggs (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788. Matters outside the pleading are permissible only if the court treats the motion to dismiss as a motion for summary judgment. Civ. R. 12(B); State ex rel. Scanlon v. Deters (1989), 45 Ohio St. 3d 376, 377, 544 N.E.2d 680. B. No complaint was filed with the Court Baldwin has failed to file a complaint in this action. Attached to the caption of "Complaint for a Writ of Mandamus" are two affidavits. The filing does not comply with the Civil Rules. C. The Complaint does not comply with RC RC provides in part: "Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit." The petition presented to this Court is not in the name of the state on the relation of Baldwin. This deficiency alone is an adequate reason to deny the petition. Maloney v. Court of Common Pleas of Allen Cty. (1962), 173 Ohio St. 226, 227, 181 N.E.2d 270; McGrath v. Judge Eileen Gallagher, 8th Dist. No , 2002 Ohio 3643, at P4. D. There are no allegations against UC or OSU in the filing The filing or "complaint" fails to provide any allegations against UC or OSU. Other than allegedly denying her acceptance, there are no allegations against UC or OSU. 4

5 E. Relator fails to state a claim for a writ of mandamus A writ of mandamus is an order, to perforrn an act, which the law specifically enjoins as a duty. In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that the relator has no plain and adequate remedy at law. State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65; State ex rel. Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 238, 594 N.E.2d 609, 611; State ex rel. Fant v. East Cleveland Mun. Court Clerk (1992), 62 Ohio St.3d 530, 531, 584 N.E.2d 721, 722; State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 451 N.E.2d 225, 226. A failure to show any one of these prerequisites requires the court to deny the petition or Petition. State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d 199, 614 N.E.2d 827. A court in mandamus proceedings cannot create the legal duty the relator would enforce through it; creation of the duty is the distinct function of the legislative branch of government. State ex rel. Stanley v. Cook (1946), 146 Ohio St. 348, 66 N.E.2d 207. Moreover, mandamus cannot be used to compel the performance of a permissive act. State ex rel. Niles v. Bernard (1978), 53 Ohio St.3d 31, 372 N.E.2d 229. A writ cannot issue to control an exercise of discretion, but it can be issued to compel a person to exercise it when there is a clear legal duty to do so. See State ex rel. Martin v. Corrigan (1986), 25 Ohio St.3d 29, 494 N.E.2d Initially, the filing fails to state a claim for a writ of mandamus. Baldwin is not seeking an order for UC or OSU to perform an act, which either would be under a legal duty to perform the act. Baldwin is seeking this Court to investigate. Second, the admission process itself would be an exercise of discretion, which is not a proper claim for a mandamus action. If Relator seeks to pursue a discrimination claim it would not be properly brought in this case. 5

6 Examining the three requirements for a writ of mandamus to be issued Relator fails to meet any of the three. First, Relator has not provided any basis that she has a clear right to the relief requested. Relator seeks to have this Court investigate the decision by the fourteen schools listed in the Complaint to examine the denials. Relator provides no legal basis for this request. Second, Relator has not shown that Respondent possesses a clear legal duty to perform the requested act. Relator provides no allegations against UC or OSU and provides no legal basis that UC or OSU were under a legal duty to admit Relator. Third, Relator's Petition fails to state a claim that warrants mandamus relief because she possesses a plain and adequate remedy at law. Relator has the ability to pursue a civil action regarding the basis of her alleged denials. Relator has failed to meet any of the requirements for a writ of mandamus and the complaint must be dismissed. III. CONCLUSION Wherefore, Respondent respectfully request that this Court issue an Order dismissing Relator's Complaint with prejudice, assess costs to Relator, and order any other relief deemed necessary and just by this Court. Respectfully submitted, SHERYL CREED MAXFIELD First 4(ssistpnt Attorney General M. CAMPBELL ( ) Akis t Attorney General Education Section 30 East Broad Street, 16`h Floor Columbus, Ohio (614)

7 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served upon the following, via regular U.S. mail, postage prepaid, this q 4t i day of August, 2008: Case Western Reserve University School of Law, Alyson Suter Alber, Esq. Assistant Dean of Admissions East Boulevard Cleveland, OH Duke University School of Law Mark Hill Director of Admissions Science Drive and Towerview Road, Box Durham, NC Law School Admission Council 662 Penn Street P.O. Box 8508 Newton, PA Northern Kentucky University Chase College of Law Ashley Gray Nunn Drive Highland Heights, KY University of Hawaii The William S. Richardson School of Law Laurie Arial Tochiki Associate Dean 2515 Dole Street Honolulu, Hawaii Vanderbilt Law School G. Todd Morton Dean of Admissions Columbia Law School E. Nkonye Iwerebon Dean of Admissions 435 West 116`s Street, MC4004 New York, NY Emory School of Law Lynell A. Cadray Dean of Admissions & Financial Aid Office of Admission Gambrell I-Iall 1301 Clifton Road Atlanta, GA New York Law School William D. Perez Assistant Dean for Admissions & Financial Aid & Financial Aid 57 Worth Street New York, NY Penn State University The Dickson School of Law Barbara W. Guillaume Senior Director, Law Admissions 150 South College Street Carlisle, PA University of Virginia School of Law Susan Palmer Associate Dean for Admissions 580 Massie Road Charlottesville, VA Yale Law School P.O. Box New Haven, CT

8 131 21S` Avenue South Harold Honju Koh Nashville, TN Dean of Admissions 127 Wall Street New Haven, CT Yvette Barbara Baldwin 688 Riddle Road, Apt. #1000E Cincinnati, OH `COiT M. CAMPBELL ( ) Assistant Attorney General 8