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Ohio Renal Association v. Kidney Dialysis Patient Protection Amendment Committee

Supreme Court of Ohio

August 1, 2018

OHIO RENAL ASSOCIATION, et al., Relators,
v.
KIDNEY DIALYSIS PATIENT PROTECTION AMENDMENT COMMITTEE, et al., Respondents

         Original Action under Article II, Section 1g of the Ohio Constitution

          MARIA J. ARMSTRONG (0038973) NELSON M. REID (0068434) JAMES P. SCHUCK (0072356) Bricker & Eckler LLP Counsel for Relators

          J. COREY COLOMBO (0072398) DEREK S. CLINGER (0092075) BEN F.C. WALLACE (0095911) McTigue & Colombo LLC Counsel for Respondents Kidney Dialysis Patient Protection Amendment Committee, Anthony Caldwell, Mary Jo Ivan, and Samara Knight

          MICHAEL DEWINE (0009181) Ohio Attorney General TIFFANY L. CARWILE (0082522) ANN YACKSWHAW (0090623) Assistant Attorneys General Counsel for Respondent Ohio Secretary of State

          PETITION RESPONDENTS' MEMORANDUM IN OPPOSITION TO RELATORS' JOINT EMERGENCY MOTION

          Maureen O'Connor, Chief Justice

         Respondents Kidney Dialysis Patient Protection Amendment Committee, Anthony Caldwell, Mary Jo Ivan, and Samara Knight ("Petition Respondents) oppose the Relators' "Joint Emergency Motion" in which they seek to suspend the Ohio Constitution or, alternatively, to impose an extremely prejudicial scheduling order upon the Petition Respondents.

         At the outset, it should be noted that although Relators captioned their motion as "joint," Petition Respondents did not join in or consent to this motion.[1]

         In their motion, Relators essentially request the Court to "suspend or extend" the deadlines for challenges to statewide initiative petitions as set forth in Article II, Section 1g of the Ohio Constitution. Petition Respondents do not believe that the Court has the authority to change such deadlines, especially given the express language in the Article II, Section 1g that "[i]f no ruling determining the petition or signatures to be insufficient is issued at least eighty-five days before the election, the petition and signatures upon such petitions shall be presumed to be in all respects sufficient." Moreover, Relators have not established that any exigent circumstances exist to warrant a suspension of the Ohio Constitution. Indeed, Relators filed their challenge on July 25, 2018, which was nine (9) days before their deadline for filing such challenge.

         Petition Respondents also strongly object to the extremely prejudicial scheduling order proposed by Relators. The Relators' proposed scheduling order, which was filed at approximately 4:20 p.m. on July 31, would require all parties to file their evidence by 5 p.m. on August 2. That new deadline would hardly be 48-hours after Relators requested it, and there would be even less notice by the time the Court rules on Relators' motion. Moving up the deadline would be even more prejudicial to Petition Respondents in light of the fact that August 2 is their deadline for filing its Supplemental Petition with Respondent Secretary, a fact Relators are surely aware of. Moreover, Respondent Secretary has not even filed his Answer, yet. Petition Respondents will need time to review his response to the challenge and prepare accordingly. An August 2 deadline for submitting evidence would leave Petition Respondents with virtually no time to do so.

         Instead, Petition Respondents propose the following schedule:

1. August 3 - Relators' brief and evidence are due.
2. August 10 - Respondents' brief and evidence are due.
3. August 11 - Relators' reply brief is due.

         This would move up the deadlines, as requested by Relators, while also remaining consistent with the Court's initial order which gave the Respondents seven days after Relators file their brief to file their own merit briefs. As to permitting the parties to file their evidence at the same time they file their merit brief, this is the Court's practice for expedited election cases under S.Ct.Prac.R. 12.08(A)(2). As to the proposed weekend filing deadline for the reply brief, there is precedent for this under Article II, Section 1g challenges. In Rothenberg v. Husted, et al., Case No. 2011-1344, the Court required respondents to file their answer by 3 p.m on a Saturday and required relators to file their brief and evidence by 12:00 p.m. on a ...


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