Ohioans for Fair Representation, Inc. v. Taft, 92-1080

• Decision Date: 25 August 1993
• Docket Number: No. 92-1080,92-1080
• Citation: 67 Ohio St.3d 180,616 N.E.2d 905
• Parties: OHIOANS FOR FAIR REPRESENTATION, INC., Appellant, et al., v. TAFT, Secy. of State, et al., Appellees.
• Court: Ohio Supreme Court

Page 180

67 Ohio St.3d 180

616 N.E.2d 905

OHIOANS FOR FAIR REPRESENTATION, INC., Appellant, et al., v. TAFT, Secy. of State, et al., Appellees.

No. 92-1080.

Supreme Court of Ohio.

Submitted April 27, 1993.

Decided Aug. 25, 1993.

SYLLABUS BY THE COURT

1. R.C. 2721.12 requires service of a copy of the proceeding on the Attorney General when a party challenges the constitutionality of a statute in a declaratory judgment action. R.C. 2721.12 does not require, however, that the Attorney General be named as a party in such an action. (Westlake v. Mascot Petroleum Co. [1991], 61 Ohio St.3d 161, 573 N.E.2d 1068, paragraph one of the syllabus, modified.)

2. For purposes of R.C. 2721.12, the Attorney General will be deemed to have been "served with a copy of the proceeding" once he undertakes representation of a party to the action.

Appellant Ohioans for Fair Representation, Inc. ("OFRI") was formed as a non-profit organization in December 1990 to advocate certain views regarding the decennial reapportionment and redistricting of the General Assembly and the United States House of Representatives. OFRI intended to rely on financial contributions from both corporations and individuals for its funding.

OFRI began soliciting support in April 1991. On April 22, 1991, Eugene Branstool filed both a complaint and a request for investigation with the Ohio Elections Committee ("OEC"), alleging violations of Ohio's campaign finance reporting laws and alleging that OFRI is a political action committee ("PAC") and was soliciting corporate funds in contravention of R.C. Title 35.

That April shower of complaints brought a May flurry of litigation. On May 14, 1991, OFRI filed an action in the Franklin County Court of Common Pleas seeking, among other relief, a declaratory judgment that the statutes in question do not apply to OFRI's lobbying and petitioning activities. OFRI also sought, in the alternative, a declaratory judgment that if any of the statutes prohibit OFRI's activities they are unconstitutional.

On July 11, 1991, after an abbreviated briefing schedule and a torrent of motions and discovery requests, the trial court ruled on motions for summary judgment. In its motion for summary judgment, OFRI reframed its request for declaratory judgment, asking the court to declare that:

"(1) Advocating any view concerning the reapportionment and redistricting of Ohio's state and congressional legislative districts is a subject matter outside the domain of the R.C. 3599.03 prohibition against corporate contributions. Such advocacy is not partisan political activity under Ohio's election laws since it does not exhort the election of any identified candidate over his/her opponent (i.e., it is not express advocacy); and

"(2) Advocating any view concerning the reapportionment and redistricting of Ohio's state and congressional legislative districts could not constitute direct or indirect influence of an election or support of a political party under Ohio's political action committee ('PAC') laws since such advocacy does not exhort the election of any identified candidate over his/her opponent (i.e., it does not express advocacy).

"(3) If R.C. 3599.03 and the Ohio PAC laws apply to corporations or other groups ('PACs') advocating a view on reapportionment and redistricting, the statutes are unconstitutionally vague and overbroad since they do not put people of ordinary intelligence on notice that advocating a view on reapportionment or redistricting is a crime;

"(4) If R.C. 3599.03 and Ohio's PAC laws apply to corporations or other groups (PACs) advocating a view on reapportionment and redistricting, the statutes impermissibly burden First Amendment rights of speech and association and the right to petition the government."

Judge Deshler, addressing only the first two requested declarations, granted summary judgment to OFRI. The court ruled that since OFRI's purpose and activities did not involve the election of a candidate or a ballot issue, the election statutes in R.C. Title 35 have no application to OFRI. Judge Deshler wrote that OFRI's partisan alliance did not change the fact that its "undisputed purpose is lobbying the instrumentalities of the state regarding reapportionment and redistricting." Since the court found R.C. Title 35 to be inapplicable to OFRI, it declined to rule upon the constitutional challenges made to the statutes by OFRI.

The Attorney General, on behalf of the Secretary of State and the OEC, appealed that decision to the Tenth District Court of Appeals. One basis of the appeal was that OFRI had failed to comply with the requirements of R.C. 2721.12. That statute reads:

"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and shall be heard. * * * " (Emphasis added.)

OFRI never directly served the Attorney General with a copy of the complaint. However, the Attorney General did undertake representation of the Secretary of State and the OEC promptly upon the filing of OFRI's complaint, and never raised the R.C. 2721.12 jurisdictional issue in his motion to dismiss or motion for summary judgment. Nevertheless, the court of appeals reversed the judgment of the trial court, holding that since OFRI failed to comply with R.C. 2721.12, the trial court did not have jurisdiction to issue its declaratory judgment.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Thompson, Hine & Flory, Leslie W. Jacobs and William C. Wilkinson, Cleveland, for appellant.

Lee I. Fisher, Atty. Gen., Cherry Lynne Poteet and Theresa R. Schaefer, Asst. Attys. Gen., for appellees Secretary of State and Ohio Elections Com'n.

PFEIFER, Justice.

R.C. 2721.12 requires service of a copy of the proceeding on the Attorney General when a party challenges the constitutionality of a statute in a declaratory judgment action. R.C. 2721.12 does not require, however, that the Attorney General be named as a party in such an action. Malloy v. Westlake (1977), 52 Ohio St.2d 103, 6 O.O.3d 329, 370 N.E.2d 457. A misstatement of the law in paragraph one of the syllabus in Westlake v. Mascot Petroleum Co. (1991) 61 Ohio St.3d 161, 573 N.E.2d 1068, has led to some confusion in this area. That paragraph reads:

"While R.C. 2721.12, which requires that the Attorney General be made a party to a declaratory judgment action challenging the constitutionality of a municipal ordinance, is applicable to proceedings initiated by way of counterclaim, it is not implicated where the sole allegation is that the ordinance is preempted by state law." (Emphasis added.)

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