Opinion
No. 77-730
Decided October 19, 1977.
Parties — Motion for intervention — Properly denied, when — R.C. 5101.161 action.
APPEAL from the Court of Appeals for Summit County.
The appellants, Dorothy Ash and members of her class which include all Summit County residents who are eligible under Ohio law and applicable regulations for poor relief in fiscal year 1977, initially sought, in the Court of Common Pleas in Cain v. Birkel, to bring a mandamus action against the members of the Board of County Commissioners of Summit County and others, asserting that they had felt the direct effect of the board's failure to make mandatory appropriations for poor relief over the past two fiscal years. Appellants were held to be without standing.
Cain v. Birkel (C.P. No. 76-4-0988), affirmed by the Court of Appeals for Summit County (No. 8204, unreported) on November 17, 1976, motion to certify to the Supreme Court overruled (No. 77-61) on March 10, 1977.
On May 10, 1977, the Attorney General of Ohio, in an original action in the Court of Appeals for Summit County, sought a writ of mandamus against the Board of County Commissioners and its members, by a complaint pursuant to R.C. 5101.161 due to the failure of the board to appropriate the county's share of expenditures for public assistance from an amount which had been certified by the Department of Public Welfare.
R.C. 5101.161 provides, in pertinent part:
"Prior to December sixteenth, annually, the department of public welfare shall certify to the board of county commissioners of each county the amount estimated by the department to be needed in the following calendar year to meet the county share, as defined in Section 5101.16 of the Revised Code, of expenditures for aid, health care, and administration under Chapters 5107. and 5113. of the Revised Code. At the beginning of the fiscal year the board of county commissioners shall appropriate the amount certified by the department, reduced or increased by the amount of the balance or deficit in the public assistance fund at the end of the fiscal year. The attorney general shall bring mandamus proceedings against any board which fails to make such an appropriation." (Emphasis added.)
On May 25, 1977, the appellants sought by motion to intervene as plaintiff-relators in said action, and that motion and a motion to reconsider were subsequently denied.
The cause is now before this court upon an appeal by applicants for intervention.
Mr. William J. Brown, attorney general, Mr. William J. Anderson, Mr. Stephen Gabalac, Mr. William E. Schultz and Mr. Steven J. Schwartz, for appellee.
Mr. Anthony Touschner, for appellants.
The clear language of R.C. 5101.161 mandates the Attorney General to protect appellants' rights against the County Board of Commissioners for such body's purported failure to appropriate the amount certified by the Department of Public Welfare. Under the General rule that "[w]hen a statute creates a cause of action and designates the persons who may sue, none but the persons so designated has the right to bring such action" (59 American Jurisprudence 2d 373, Parties, Section 24), the appellants have no standing. Furthermore, it is clear that the Attorney General is obligated to employ his best efforts in the prosecution of the case at bar and that the applicant for intervention has the burden of showing that representation by existing parties is inadequate. Afro American Patrolmens League v. Duck (C.A. 6, 1974), 503 F.2d 294, 298. Applicants for intervention in the matter at bar have not satisfied this burden.
Civ. R. 24 establishes the criteria for determining the right of a party to intervene. It provides, in pertinent part:
"(A) Intervention of right.
"Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." (Emphasis added.)
We find that the Court of Appeals correctly determined that the Attorney General adequately represents the applicants for intervention, and properly denied the motion for intervention at this stage of the proceeding.
We do not conclude that in light of future proffered testimony critical to the above-mentioned applicants for intervention a subsequent motion to intervene is procedurally barred.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, W. BROWN, P. BROWN and LOCHER, JJ., concur.
CELEBREZZE and SWEENEY, JJ., dissent.