IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION THE OHIO DEMOCRATIC PARTY, : Case No. C2:04-1055 : Plaintiff, : Judge Marbley : Magistrate Judge Kemp vs. : : J. KENNETH BLACKWELL, et al. : : Defendants. : MEMORANDUM CONTRA EMERGENCY MOTION OF THE ALLIANCE FOR DEMOCRACY TO INTERVENE AS PLAINTIFF OF THE OHIO REPUBLICAN PARTY Now comes Intervenor, the Ohio Republican Party ( ORP ), and respectfully urges this Court to deny Intervenor status to the Alliance for Democracy ( Alliance ) and deny all other Emergency Motions filed by the Alliance. A Memorandum in Support of this Motion is attached hereto. Respectfully Submitted, s/william M. Todd William M. Todd (0023061) Mary C. Mertz (0075225) Squire, Sanders & Dempsey L.L.P. 1300 Huntington Center 41 South High Street Columbus, OH 43215-6101 Phone: 614.365-2700 Facsimile: 614-365-2499 Attorneys for The Ohio Republican Party
Of Counsel: s/kurtis A. Tunnell Kurtis A. Tunnell (0038569) Anne Marie Sferra (0030855) Maria J. Armstrong (0038973) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215 Phone: 614.227.2300 Facsimile: 614.227.2390 E-mail: ktunnell@bricker.com asferra@bricker.com marmstrong@bricker.com 2
MEMORANDUM IN SUPPORT It is unclear whether the Alliance seeks intervention as of right or permissive intervention. In either event, however, intervention is not warranted and should be denied. Federal Civil Rule 24(a) states in relevant part: Upon timely application anyone shall be permitted to intervene in an action... or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. The Sixth Circuit has adopted a four-part test which must be satisfied in order to establish intervention as a matter of right under Civ. R. 24(a): (1) the motion must be timely, (2) the intervenor must have a substantial legal interest in the subject matter of the action; (3) the intervenor s ability to protect its interest may be impaired in the absence of intervention; and (4) the parties already before the court may not adequately represent intervenor s interest. Grutter v. Bollinger, 188 F.3d 394, 397-98 (6 th Cir. 1999), overruled on other grounds, 156 L. Ed. 2d 257, 123 S. Ct. 2411. The Alliance bears the burden of establishing its right to intervene. United States v. Texas E. Transmission Corp., 972 F.2d 482, 485-86 (2 nd Cir. 1992). Permissive intervention is allowed by Fed. R. Civ. P. 24(b), which states: Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. Here, the Alliance meets none of the criteria for either intervention as of right or permissive intervention. First, the Motion to Intervene is not timely. Courts in the Sixth Circuit 3
examine five factors for determining whether a motion to intervene is timely: (1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervener knew or reasonably should have known of [its] interest in the case; (4) the prejudice to the original parties due to the proposed intervener's failure, after [it] knew or reasonably should have known of [its] interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention. Morocco v. Nat'l Union Fire Ins. Co., 2003 U.S. Dist. LEXIS 17918, *4-5 (S.D. Ohio 2003) (citations and internal quotations omitted). This action was filed two and half months ago on November 2, 2004. The only remedy sought was an emergency temporary restraining order that, in effect, required Defendants to provide paper ballots on Election Day. This Court granted immediate relief on Election Day. Thereafter, on December 2, 2004, Plaintiff asked this Court to dismiss the action stating that no justiciable controversy remains. Six weeks after the Motion to Dismiss was filed, the Alliance filed this motion to intervene in this case arguing that Plaintiff cannot protect the Alliance s interests solely because the Plaintiff filed its Motion to Dismiss. The Alliance admits that it has been actively involved in Election Day challenges since shortly after the election. Memorandum in Support of Motion to Intervene, p. 2. Surely, the Alliance knew or should have known of this litigation. If the Alliance wanted to participate in this case, it should have done so long before it did. Perhaps even more importantly, the Alliance has no interests to protect in this case. See Plaintiff s Memorandum in Opposition to Motion of Alliance for Democracy to Intervene as a Plaintiff, p. 2-3. The Alliance s Motion to Intervene includes vague suggestions that it seeks to intervene because it has an interest in addressing a statewide conspiracy of fraudulent activity. 4
However, matters of fraud or conspiracy are not before this Court and, accordingly, should not serve as the basis for intervention. The Alliance cannot rely upon its own allegations novel to this case to support an argument that intervention is appropriate. Furthermore, the Alliance s request to join in this case cannot be based upon a purported legal interest in issues that were decided by this Court months ago. Rather, the Alliance s motion is a thinly veiled attempt to greatly expand the scope of this case to include issues that are not, and do not, belong before this Court. Additionally, the Alliance s attempt to intervene represents a blatant example of forum shopping. As noted in its Motion to Intervene, some members of the Alliance participated as individual Contestors in a contest action in the Supreme Court of Ohio, in which long lines at the polling place as well as theories of fraud and conspiracy were raised. See Emergency Motion of the Alliance for Democracy to Intervene as a Plaintiff, p.1. When faced with a Motion to Dismiss in the state Contest action, the Contestors quickly dropped that action. But, their counsel (who also represents the Alliance herein) vowed to bring the same claims in another state or federal forum. See Associated Press Articles attached as Exhibits A and B (the day after filing a voluntary dismissal of the contest action on behalf of his client, Mr. Arnebeck is quoted as saying we are not quitting, we are going on to any other forum that s available and we intend to pursue those avenues aggressively. ). The Alliance argues to this Court that the Ohio Supreme Court did not apply any discipline to the process of considering allegations of fraud and suggests, that it was denied a prompt adjudication of its claims. In reality, the contest action in the Ohio Supreme Court was voluntarily dismissed by the Contestors before a response to the Motions to Dismiss was even filed. Three days after Contestors voluntarily dismissed the Ohio Supreme Court contest action, 5
the Alliance brought its basket of allegations to this Court seeking to expand this case to include theories of fraud and conspiracy. This effort was made even though these issues are unrelated to the case currently pending here. Simply put, the Alliance s Motion to Intervene should be denied because the Alliance articulates no substantial legal interest in the subject matter of this complaint sufficient to support intervention. The Alliance cannot legitimately argue that it has a substantial legal interest in addressing long lines on Election Day in light of its failure to make any attempt to intervene in this case before now. The Plaintiff in this case already obtained relief on that issue and the Alliance provides no explanation or argument as to why that relief is lacking or insufficient to fully address any legal interest it may have in the matter. Where, as here, an intervenor makes no showing that a ruling with respect to plaintiffs would impair or impede their ability to protect their own interests, intervention is not warranted. Thomas v. United States, 2001 U.S. Dist. LEXIS 5014 (S.D. Ohio 2001). Indeed, the relief which the Alliance seeks is far beyond what was sought originally in this case. The Alliance actually sought an emergency hearing and immediate leave to conduct depositions, purportedly to enjoin the President from taking his oath of office at the Inaugural pending the outcome of this case. That request even if it were meritorious is now academic at best and certainly does not rise to the level of a substantial legal interest required by Civ. R. 24. The underlying goal or purpose of intervention is judicial efficiency by allowing inclusion of all persons directly affected by its outcome into the lawsuit. See Sierra Club v. Espy, 18 F.3d 1202, 1207 (5 th Cir. 1994); Security Ins. Co. v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7 th Cir. 1995). Judicial efficiency is not served by allowing a purported intervenor to 6
abuse Civ. R. 24 in order to bring unrelated claims into the forum it perceives to be most favorable. As such, the Alliance should not be permitted to intervene. Similarly, the Alliance s Emergency Motion for Leave to Take Depositions is not well taken. In its Memorandum in Support of the Motion, the Alliance argues that depositions are needed to conduct an independent audit of the process for counting the votes. The Memorandum in Support does not include a single allegation or argument that is tangentially related to the matters currently pending before this Court -- long lines at the polling place. Issues related to counting of the ballots after election are simply not before this Court. As this Court is no doubt aware, Ohio s votes have already been counted, certified, recounted and re-certified pursuant to state law. Nevertheless, the Alliance inappropriately seeks to use this Court s authority and this case as a springboard for an independent audit of the vote count. The ORP respectfully urges this Court to bar the Alliance from using this case as a platform from which to conduct a fishing expedition into unrelated issues. The Alliance s requests to Intervene, for an Emergency Hearing and for Leave to Take Depositions are all without merit. As such, the ORP respectfully urges this Court to deny the Alliance s Motions. Respectfully Submitted, s/william M. Todd William M. Todd (0023061) Mary C. Mertz (0075225) Squire, Sanders & Dempsey L.L.P. 1300 Huntington Center 41 South High Street Columbus, OH 43215-6101 Phone: 614.365-2700 Facsimile: 614-365-2499 Attorneys for The Ohio Republican Party 7
Of Counsel: s/kurtis A. Tunnell Kurtis A. Tunnell (0038569) Anne Marie Sferra Vorys (0030855) Maria J. Armstrong (0038973) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215 Phone: 614.227.2300 Facsimile: 614.227.2390 E-mail: ktunnell@bricker.com asferra@bricker.com marmstrong@bricker.com Attorneys for The Ohio Republican Party CERTIFICATE OF SERVICE The undersigned hereby certifies that on February 4, 2005 the foregoing was filed electronically. Notice of this filing will be sent to all parties by operation of the Court s electronic filling system. Parties may access this filing through the Court s system. Those parties not served were mailed a copy via United States First Class Mail with adequate postage affixed thereon. Respectfully Submitted, s/william M. Todd William M. Todd (0023061) Mary C. Mertz (0075225) Squire, Sanders & Dempsey L.L.P. 1300 Huntington Center 41 South High Street Columbus, OH 43215-6101 Phone: 614.365-2700 Facsimile: 614-365-2499 Attorneys for The Ohio Republican Party 8