IN THE SUPREME COURT OF OHIO

Transcription

1 ORIGINAL IN THE SUPREME COURT OF OHIO THE STATE OF OHIO EX REL JEFFREY MORROW Relator, V. THE HONORABLE MARY R. KOVACK Judge of the Court of Common Pleas Domestic Relations Division Respondent. CASE NO MOTION TO STRIKE MOTION TO STRIKE RELATOR'S MEMORANDUM OF LAW IN SUPPORT OF RELATOR'S FIRST AMENDED VERIFIED COMPLAINT FOR A WRIT OF PROCEDENDO DEAN HOLMAN Prosecuting Attorney of Medina County, Ohio BRIAN M. RICHTER ( ) Assistant Prosecuting Attorney (Counsel of Record) (330) (330) /Facsimile brichter n,medinaco.org JOHN C. RAGNER ( ) Towne, Hanna & Rasnick, Co., L. P. A. 388 South Main Street, Suite 402 Akron, Ohio (330) (330) Facsimile iragner(^n neolaw.biz Attorney for Relator Attorney for Respondent Judge Mary R. Kovack Medina County Court of Common Common Pleas, Domestic Relations Division MAY CLERK OF COURT SUPREME COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO THE STATE OF OHIO ex rel. CASE NO JEFFERY MORROW (Original Action in Procedendo or for an Alternative Writ) Relator, v. RESPONDENT'S MOTION TO STRIKE THE HONORABLE MARY R. KOVACK RELATOR'S MEMORANDUM OF LAW IN SUPPORT OF RELATOR'S FIRST Respondent. AMENDED VERIFIED COMPLAINT FOR A WRIT OF PROCEDENDO Now comes the Honorable Mary R. Kovack, Judge of the Court of Common Pleas, Domestic Relations Division, Medina County, Ohio ("Court Respondent"), by and through counsel, Dean Holman, Prosecuting Attorney for Medina County, Ohio and Brian M. Richter, Assistant Prosecuting Attorney, and moves this Honorable Court to Strike Relator's Memorandum of Law in Support of Relator's First Amended Verified Complaint for a Writ of Procedendo filed on May 6, For cause the Court Respondent states that said Memorandum does not comply with S.Ct. Prac. R. Section 10 (Original Actions), as more fully set forth in the brief in support attached hereto and incorporated herein. Respectfully submitted, DEAN HOLMAN Mediy^ounty PrqFciI'fg t)aorney Phone: (330) Facsimile: (330) brichter(crm.edinaco.org Attomey for Respondent Judge Mary R. Kovack Medina County Court of Common Pleas, Domestic Relations Division

3 BRIEF IN SUPPORT 1. INTRODUCTION On April 22, 2011 Relator filed a Verified Complaint for a Writ of Procedendo or for an Alternative Writ naming the Honorable Mary R. Kovack, Judge of the Court of Common Pleas, Domestic Relations Division, Medina County, Ohio, as Respondent. Prior to a responsive pleading, on May 6, 2011, Relator filed his First Amended Verified Complaint for a Writ of Procedendo or an Altemative Writ. At the same time, on May 6, 2011, Relator filed a Memerandun^of--Law_in_Sup- aon-a elator's First Amended Verified Complaint for Writ of Procedendo, contrary to S.Ct. Prac. Rule Section 10. (Original Actions). II. LAW AND ARGUMENT The Supreme Court Rules of Practice Section 10 sets out the procedure to respond to Original Actions filed with this Honorable Court and specifically, indicates that: S.Ct. Prac. R through apply only to actions, other than habeas corpus, within the original jurisdiction of the Supreme Court under Article IV, Section 2 of the Ohio Constitution. The following Revised Code Chapters also are applicable: Mandamus, R.C. Chapter 2731; Quo Warranto, R.C *^* In all original actions filed in the Supreme Court of Ohio, the Rules of Practice of the Supreme Court of Ohio shall govern the procedure and the form documents filed in the actions. The Ohio Rules of Civil Procedure shall supplement these rules unless clearly inapplicable. Where these rules conflict with the Ohio Rules of Civil Procedure, these rules shall control. *+^ Except as provided by S.Ct. Prac. R and 10.10, the respondent shall file an answer to the complaint or motion to dismiss within twenty-one days of service of the sununons and complaint. If an amended complaint is filed under S.Ct. Prac. R. 8.7, and Civ. R. 15(A), the respondent shall file and answer to the -2-

4 amended complaint or motion to dismiss within twenty-one days of the filing of the amended complaint. The respondent may file a motion for judgment on the pleadings at the same time an answer is filed. The relator may not file a response to an answer. The relator may file a memorandum in opposition to a motion to dismiss or a motion for judgment on the pleadings within ten days of the filing of a motion. Neither party may file a motion for summary judgment. After the time for filling an answer to the complaint or motion to dismiss, the Supreme Court will either dismiss the case or issue alternative or a peremptory writ, if a writ has not already been issued. See, S.Ct. Prac. R.10.1(A), 10.2 and l0.5(a),(b)&(c). The procedure for a response to the complaint and amended complaint is clearly set out. (See, S.Ct. Prac. R.10.5). That procedure only allows Relator to file a Memorandum in Opposition to a Motion to Dismiss or a Motion for Judgment on the Pleadings. Since, Relator has filed a Memorandum of Law in Support of Relator's First Amended Complaint for Writ of Procedendo contrary to the Rules of Practice of the Supreme Court of Ohio, Respondent respectfully requests that said Memorandum filed on May 6, 2011 be stricken. Respectfully submitted, DEAN^OLMAN Med(nounty Prosecui0Yg t,womey RIAN M. RI`CVrER ( ) Phone: (330) Facsimile: (330) brichter@medinaco.org Attorney For Respondent Judge, Mary R. Kovack Medina County Court of Common Pleas, Domestic Relations Division

5 CERTIFICATE OF SERVICE A copy of the foregoing Motion to Strike was sent by ordinary United States Mail, postage prepaid, this jjtk day of May, 2011, to: John C. Ragner, Esq. Towne, Hanna, Rasnick, Co., L.P.A. 388 South Main Street, Suite 402 Akron, Ohio Attorney for Relator RIAN M. RICHTER, Assistant Prosecuting Attom.ey