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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
JAMES D. O’NEAL, et al.,
PLAINTIFFS, : CASE NO. 18CV-758
vs. 3 JUDGE SERROT
THE STATE OF OHIO, et al.,
DEFENDANTS.
CLEVELAND JACKSON’S MOTION
TO INTERVENE AS PLAINTIFF-INTERVENOR
Cleveland Jackson moves this Court under Rule 24(A)(2) of the Ohio Rules of Civil
Procedure for leave to intervene as a matter of right in this action. As a death sentenced individual,
Jackson has an interest in the execution protocol, which is the subject of this action. Disposition
of this litigation without his participation may impair or impede his interest, and his interest will
not be adequately represented by the existing parties.
In the alternative, Jackson requests permissive intervention under Rule 24(B)(2) of the
Ohio Rules of Civil Procedure. His challenges to Ohio’s current execution protocol have both a
question of law and fact common with the three plaintiffs. His intervention will not unduly delay
or prejudice the adjudication of the rights of the original parties
Jackson attached to this motion a memorandum of law which he incorporates in this matter
and a proposed complaint for Jackson.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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Respectfully submitted,
Office of the Federal Public Defender
for the District of Arizona
/s/ Dale A. Baich
Dale A. Baich (Ohio Bar No. 0025070)
Assistant Federal Public Defender
Email: Dale_Baich@fd.org
850 W. Adams St., Suite 201
Phoenix, Arizona 85007
Telephone: (602) 382-2816
Facsimile: (602) 889-3960
Counsel for Cleveland Jackson
MEMORANDUM OF LAW
Proposed Plaintiff-Intervenor Cleveland Jackson is on Ohio’s Death Row. He has
exhausted his appeals. He is scheduled to be executed on September 13, 2018, using the execution
protocol, ODRC 01-COM-11, that is currently in place. The three plaintiffs currently in the
litigation also exhausted their appeals and have execution dates, Robert Van Hook (July 18, 2018),
Raymond Tibbetts (October 17, 2018), and James Derrick O’Neal (February 18, 2021).
Two plaintiffs, O’Neal and Tibbetts, instituted suit challenging the State of Ohio’s adoption
of ODRC 01-COM-11. A third plaintiff, Van Hook, was granted permission to intervene on
May 30, 2018. Given that Jackson is similarly situated, he requests that this Court grant him leave
to join in this litigation. Jackson satisfies the conditions for both intervention as of right
(Civ.R. 24(A)) and permissive intervention (Civ.R. 24(B)).
Prior to examining the provisions governing intervention as of right and permissive
intervention, it is important to identify the two overriding principles in Ohio with respect to
intervention. First, intervention is a factual issue based on the facts and circumstances unique to
each case. State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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N.E.2d 1058 (1998). Second, the courts liberally construe Rule 24 to permit intervention. State ex
rel. SuperAmerica Group v. Licking Cty. Bd. of Elections, 80 Ohio St.3d 182, 184, 685 N.E.2d 507
(1997); Ohio Dept. of Adm. Servs., Office of Collective Bargaining v. State Emp. Relations Bd., 54
Ohio St.3d 48, 51, 562 N.E.2d 125 (1990).
I. Jackson satisfies the requirements for intervention as of right as set forth in
Rule 24(A)(2).
Rule 24(A) of the Ohio Civil Procedure provides in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action . . .
(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
Civ.R. 24(A)
The rule establishes three conditions that an individual must meet to be granted leave to
intervene as a matter of right in a lawsuit: 1) he must have an interest in the property or transaction,
which is the subject matter of the litigation, 2) failure to permit intervention may impede his ability
to protect that interest, and 3) the existing parties must not adequately represent or protect that
interest. Jackson satisfies all three requirements.
A. Jackson has an interest in the litigation.
Ohio courts have not delineated the precise contours of an interest sufficient to support
intervention as of right. However, the Supreme Court of Ohio has recognized two criteria
First, the involvement of fundamental constitutional rights will satisfy the interest
requirement. State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, 147 Ohio St.3d 432,
2016-Ohio-1519, 67 N.E.3d 728, {| 22. The purpose behind the present litigation is to prevent the
Plaintiffs’ execution in a manner that violates the Eighth Amendment to be free from cruel andFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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unusual punishment and the Fourteenth Amendment right to equal protection. Jackson seeks to
join this litigation for the same reasons. Hence, fundamental constitutional rights are involved.
Second, the interest must be legally enforceable. State ex rel. Dispatch Printing Co. v. City
of Columbus, 90 Ohio St.3d 39, 40, 734 N.E.2d 797 (2000). The Eighth Amendment right to be
free of cruel and unusual punishment is legally enforceable. 7Zrop v. Dulles, 356 U.S. 86, 101, 78
S.Ct. 590, 2 L. Ed. 2d 630 (1958). Similarly, the Fourteenth Amendment right to Equal Protection
with respect to executions is also legally enforceable. Jn re Ohio Execution Protocol Litigation,
840 F.Supp.2d 1044, 1059 (S.D.Ohio 2012). Finally, a party has a legally enforceable right that
the State of Ohio and its various agencies and departments adopt their rules in compliance with
the procedures contained in R.C. 111.15 and the Ohio and Federal Constitutions. See Complaint,
pp. 8-26, State ex rel. Bd. of Edn. of N. Canton Exempted Village School District v. Holt, 174 Ohio
St. 55, 57, 186 N.E.2d 862 (1962).
B. Jackson’s ability to protect his interests will be impaired if he is not
permitted to intervene.
The impairment prong of the test requires only a hypothetical showing: Jackson need not
show either “substantial impairment” of his interests or that “impairment will inevitably ensue
from an unfavorable disposition.” Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991).
Rather, as stated in Rule 24, he need show only that the disposition may harm his ability to protect
his interests. /d. For that reason, the s/are decisis effect of a potentially adverse holding is sufficient
to show impairment. Jansen v. City of Cincinnati, 904 F.2d 336, 342 (6th Cir. 1990); Linton v.
Comm 'r of Health & Env’t, 973 F.2d 1311, 1319 (6th Cir. 1992). If the other Plaintiffs, O’Neal,
Tibbetts, and Van Hook, do not prevail, it would impair, if not completely destroy, Jackson’s
ability to advance his arguments and put forth evidence in a separate action in this Court.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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Cc. O’Neal, Tibbetts, and Van Hook cannot adequately protect Jackson’s
interests.
The test’s inadequate representation prong, like the impairment prong, requires only a
minimal and hypothetical showing
The requirement of the Rule is satisfied if the applicant shows that representation
of his interest “may be” inadequate; and the burden of making that showing should
be treated as minimal
Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972).
While O’Neal and Tibbetts face execution dates, their dates are subsequent to Jackson’s
execution date. Jackson must have the litigation completed (including in the Court of Appeals and
the Supreme Court of Ohio), prior to September 13, 2018. Neither Tibbetts nor O’Neal need to
have their litigation completed by September 13, 2018. Therefore, they lack the impetus to file the
requisite pleadings to expedite the litigation.
Van Hook, on the other hand, faces execution before Jackson. But his execution is currently
only a few days away, and Van Hook is scheduled to be executed before this litigation is
completed. Van Hook, therefore, can also not adequately protect Jackson’s interests in this
litigation
D. Jackson satisfies the conditions contained in Rule 24(A)(2).
Jackson has an interest, a fundamental right that is enforceable, concerning the procedures
employed in the adoption of ODRC 01-COM-11. If he is not permitted to intervene, his ability to
protect that interest may be impaired. The current Plaintiffs cannot protect that interest.
Accordingly, this Court should order that he be permitted to intervene as a matter of right.
IL. In the alternative, Jackson satisfies the requirements for permissive intervention set
forth in Rule 24(B)(2).Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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An individual who “has a claim or defense that shares a common question of law or fact
with the main action and that intervention will not unduly delay or prejudice the adjudication of
the rights of the original parties, meets the requirements of Civ.R. 24(B)(2) for permissive
intervention.” State ex rel. Merrill vy. Ohio Dept. of Natural Res., 130 Ohio St.3d 30, 2011-Ohio-
4612, 955 N.E.2d 935, 4 45. Jackson has a direct and substantial interest in the outcome of this
matter. His interests and the interests of Plaintiffs share the same questions of law and fact
To satisfy this requirement for permissive intervention, a proposed intervenor must
demonstrate that intervention will not “unduly delay or prejudice the adjudication of the rights of
the original parties.” Civ.R. 24(B)(2). A court should consider the following factors: “(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 intervenor knew or reasonably should
have known of his interest in the case, (4) the prejudice to the original parties due to the proposed
intervenor’s failure after he or she knew or reasonably should have known of his or her interest in
the case to apply promptly for intervention, and (5) the existence of unusual circumstances
militating against or in favor of intervention.” Univ. Hosps. of Cleveland v. Lynch, 96 Ohio St.3d
118, 2002-Ohio-3748, 772 N.E.2d 105, § 48; State ex rel. First New Shiloh Baptist Church, 82
Ohio St.3d at 503. Normally, a court will assess each of these factors when resolving the timeliness
issue. Lynch at JJ 50-51; State ex rel. First New Shiloh Baptist Church at 503-05
This case remains in its early stages. This litigation was initiated this year. Defendants filed
their Answers less than a month ago. Furthermore, because Jackson’s proposed complaint is
identical in substance to O’Neal and Tibbetts’s as well as Van Hook’s complaints, and differs only
by Jackson as being named as a plaintiff, there is no hardship for Defendants. (Jackson has even
numbered his proposed complaint so that the paragraph numbers are the same as O’Neal andFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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Tibbetts’s complaint, leaving a paragraph blank for convenience of matching the complaints.)
Jackson seeks to intervene to protect his rights and if, anything, speed up this litigation by a few
weeks, not delay it. Jackson was not aware of this litigation before June 19, 2018, because he had
been abandoned by his counsel for the last several years. See Motion for Appointment of Substitute
Counsel, Jackson v. Houk, 6th Cir. No. 08-3677 (June 13, 2018) (ECF 240) (Exhibit A).
Undersigned counsel was appointed to represent Jackson only on June 19, 2018. Order, Jackson
v. Houk, 6th Cir. No. 08-3677 (June 19, 2018) (ECF 241-1) (Exhibit B). Jackson has therefore
moved promptly for intervention since his current counsel has informed him of the litigation.
Moreover, Jackson’s complete abandonment by his prior counsel, while facing an impending
execution date, is indeed an unusual circumstance that militates in favor of letting him intervene.
He should not be unduly punished for the failures of his appointed counsel
Accordingly, this Court should order that Jackson be permitted permissive intervention.
If. Jackson satisfies the procedural issues contained in Rule 24(C).
The proposed intervenor must serve the “motion to intervene upon the parties as provided
in Civ.R. 5. The motion and any supporting memorandum shall state the grounds for intervention
and shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or
defense for which intervention is sought.” Civ.R. 24(C). Jackson in this pleading identified the
grounds for intervention and attached the requisite pleading a copy of a proposed. Finally, upon
the filing of this document Jackson will serve all of the parties in accordance with Rule 5
IV. Conclusion
For the foregoing reasons, Cleveland Jackson respectfully requests that his motion be
granted and that he be permitted to intervene in the instant actionFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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Respectfully submitted,
Office of the Federal Public Defender
for the District of Arizona
/s/ Dale A. Baich
Dale A. Baich (Ohio Bar No. 0025070)
Assistant Federal Public Defender
Email: Dale_Baich@fd.org
850 W. Adams St., Suite 201
Phoenix, Arizona 85007
Telephone: (602) 382-2816
Facsimile: (602) 889-3960
Counsel for Cleveland JacksonFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758
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Certificate of Service
Thereby certify that the foregoing Cleveland Jackson's Motion To Intervene As Plaintiff-
Intervenor was filed by electronic transmission on July 12, 2018 and was sent by regular first-class
mail to Counsel for Plaintiffs and Defendants:
S. Adele Shank - 0022148 Lawrence J. Greger - 0002592
3380 Tremont Road, Suite 270 120 W. Second Street, Suite 1100
Columbus, Ohio 43221-2112 Dayton, Ohio 45402
Attorney for Plaintiffs O'Neal & Tibbetts Attorney for Plaintiffs O’Neal & Tibbetts
Randall L. Porter - 005835
Assistant State Public Defender
Office of the Ohio Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215-9308
Attorney for Plaintiff Van Hook
Zoe A. Saadey — 0089181 Charles L. Wille — 0056444
Assistant Attorney General Assistant Attorney General
Criminal Justice Section Criminal Justice Section
Capital Crimes Unit Capital Crimes Unit
150 East Gay Street, 16'" Floor 150 East Gay Street, 16" Floor
Columbus, Ohio 43215 Columbus, Ohio 43215
Attorney for Defendants Attorney for Defendants
/s/ Dale A. Baich
DALE A. BAICH - 0025070
Attorney for Cleveland Jackson
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H80 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION JAMES D. O’NEAL, et al., PLAINTIFFS, : CASE NO. 18CV-758 vs. 3 JUDGE SERROT THE STATE OF OHIO, et al., DEFENDANTS. CLEVELAND JACKSON’S MOTION TO INTERVENE AS PLAINTIFF-INTERVENOR Cleveland Jackson moves this Court under Rule 24(A)(2) of the Ohio Rules of Civil Procedure for leave to intervene as a matter of right in this action. As a death sentenced individual, Jackson has an interest in the execution protocol, which is the subject of this action. Disposition of this litigation without his participation may impair or impede his interest, and his interest will not be adequately represented by the existing parties. In the alternative, Jackson requests permissive intervention under Rule 24(B)(2) of the Ohio Rules of Civil Procedure. His challenges to Ohio’s current execution protocol have both a question of law and fact common with the three plaintiffs. His intervention will not unduly delay or prejudice the adjudication of the rights of the original parties Jackson attached to this motion a memorandum of law which he incorporates in this matter and a proposed complaint for Jackson.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H81 Respectfully submitted, Office of the Federal Public Defender for the District of Arizona /s/ Dale A. Baich Dale A. Baich (Ohio Bar No. 0025070) Assistant Federal Public Defender Email: Dale_Baich@fd.org 850 W. Adams St., Suite 201 Phoenix, Arizona 85007 Telephone: (602) 382-2816 Facsimile: (602) 889-3960 Counsel for Cleveland Jackson MEMORANDUM OF LAW Proposed Plaintiff-Intervenor Cleveland Jackson is on Ohio’s Death Row. He has exhausted his appeals. He is scheduled to be executed on September 13, 2018, using the execution protocol, ODRC 01-COM-11, that is currently in place. The three plaintiffs currently in the litigation also exhausted their appeals and have execution dates, Robert Van Hook (July 18, 2018), Raymond Tibbetts (October 17, 2018), and James Derrick O’Neal (February 18, 2021). Two plaintiffs, O’Neal and Tibbetts, instituted suit challenging the State of Ohio’s adoption of ODRC 01-COM-11. A third plaintiff, Van Hook, was granted permission to intervene on May 30, 2018. Given that Jackson is similarly situated, he requests that this Court grant him leave to join in this litigation. Jackson satisfies the conditions for both intervention as of right (Civ.R. 24(A)) and permissive intervention (Civ.R. 24(B)). Prior to examining the provisions governing intervention as of right and permissive intervention, it is important to identify the two overriding principles in Ohio with respect to intervention. First, intervention is a factual issue based on the facts and circumstances unique to each case. State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H82 N.E.2d 1058 (1998). Second, the courts liberally construe Rule 24 to permit intervention. State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections, 80 Ohio St.3d 182, 184, 685 N.E.2d 507 (1997); Ohio Dept. of Adm. Servs., Office of Collective Bargaining v. State Emp. Relations Bd., 54 Ohio St.3d 48, 51, 562 N.E.2d 125 (1990). I. Jackson satisfies the requirements for intervention as of right as set forth in Rule 24(A)(2). Rule 24(A) of the Ohio Civil Procedure provides in pertinent part: Upon timely application anyone shall be permitted to intervene in an action . . . (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 Civ.R. 24(A) The rule establishes three conditions that an individual must meet to be granted leave to intervene as a matter of right in a lawsuit: 1) he must have an interest in the property or transaction, which is the subject matter of the litigation, 2) failure to permit intervention may impede his ability to protect that interest, and 3) the existing parties must not adequately represent or protect that interest. Jackson satisfies all three requirements. A. Jackson has an interest in the litigation. Ohio courts have not delineated the precise contours of an interest sufficient to support intervention as of right. However, the Supreme Court of Ohio has recognized two criteria First, the involvement of fundamental constitutional rights will satisfy the interest requirement. State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, {| 22. The purpose behind the present litigation is to prevent the Plaintiffs’ execution in a manner that violates the Eighth Amendment to be free from cruel andFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H83 unusual punishment and the Fourteenth Amendment right to equal protection. Jackson seeks to join this litigation for the same reasons. Hence, fundamental constitutional rights are involved. Second, the interest must be legally enforceable. State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 40, 734 N.E.2d 797 (2000). The Eighth Amendment right to be free of cruel and unusual punishment is legally enforceable. 7Zrop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L. Ed. 2d 630 (1958). Similarly, the Fourteenth Amendment right to Equal Protection with respect to executions is also legally enforceable. Jn re Ohio Execution Protocol Litigation, 840 F.Supp.2d 1044, 1059 (S.D.Ohio 2012). Finally, a party has a legally enforceable right that the State of Ohio and its various agencies and departments adopt their rules in compliance with the procedures contained in R.C. 111.15 and the Ohio and Federal Constitutions. See Complaint, pp. 8-26, State ex rel. Bd. of Edn. of N. Canton Exempted Village School District v. Holt, 174 Ohio St. 55, 57, 186 N.E.2d 862 (1962). B. Jackson’s ability to protect his interests will be impaired if he is not permitted to intervene. The impairment prong of the test requires only a hypothetical showing: Jackson need not show either “substantial impairment” of his interests or that “impairment will inevitably ensue from an unfavorable disposition.” Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991). Rather, as stated in Rule 24, he need show only that the disposition may harm his ability to protect his interests. /d. For that reason, the s/are decisis effect of a potentially adverse holding is sufficient to show impairment. Jansen v. City of Cincinnati, 904 F.2d 336, 342 (6th Cir. 1990); Linton v. Comm 'r of Health & Env’t, 973 F.2d 1311, 1319 (6th Cir. 1992). If the other Plaintiffs, O’Neal, Tibbetts, and Van Hook, do not prevail, it would impair, if not completely destroy, Jackson’s ability to advance his arguments and put forth evidence in a separate action in this Court.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H84 Cc. O’Neal, Tibbetts, and Van Hook cannot adequately protect Jackson’s interests. The test’s inadequate representation prong, like the impairment prong, requires only a minimal and hypothetical showing The requirement of the Rule is satisfied if the applicant shows that representation of his interest “may be” inadequate; and the burden of making that showing should be treated as minimal Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972). While O’Neal and Tibbetts face execution dates, their dates are subsequent to Jackson’s execution date. Jackson must have the litigation completed (including in the Court of Appeals and the Supreme Court of Ohio), prior to September 13, 2018. Neither Tibbetts nor O’Neal need to have their litigation completed by September 13, 2018. Therefore, they lack the impetus to file the requisite pleadings to expedite the litigation. Van Hook, on the other hand, faces execution before Jackson. But his execution is currently only a few days away, and Van Hook is scheduled to be executed before this litigation is completed. Van Hook, therefore, can also not adequately protect Jackson’s interests in this litigation D. Jackson satisfies the conditions contained in Rule 24(A)(2). Jackson has an interest, a fundamental right that is enforceable, concerning the procedures employed in the adoption of ODRC 01-COM-11. If he is not permitted to intervene, his ability to protect that interest may be impaired. The current Plaintiffs cannot protect that interest. Accordingly, this Court should order that he be permitted to intervene as a matter of right. IL. In the alternative, Jackson satisfies the requirements for permissive intervention set forth in Rule 24(B)(2).Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H85 An individual who “has a claim or defense that shares a common question of law or fact with the main action and that intervention will not unduly delay or prejudice the adjudication of the rights of the original parties, meets the requirements of Civ.R. 24(B)(2) for permissive intervention.” State ex rel. Merrill vy. Ohio Dept. of Natural Res., 130 Ohio St.3d 30, 2011-Ohio- 4612, 955 N.E.2d 935, 4 45. Jackson has a direct and substantial interest in the outcome of this matter. His interests and the interests of Plaintiffs share the same questions of law and fact To satisfy this requirement for permissive intervention, a proposed intervenor must demonstrate that intervention will not “unduly delay or prejudice the adjudication of the rights of the original parties.” Civ.R. 24(B)(2). A court should consider the following factors: “(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 intervenor knew or reasonably should have known of his interest in the case, (4) the prejudice to the original parties due to the proposed intervenor’s failure after he or she knew or reasonably should have known of his or her interest in the case to apply promptly for intervention, and (5) the existence of unusual circumstances militating against or in favor of intervention.” Univ. Hosps. of Cleveland v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, § 48; State ex rel. First New Shiloh Baptist Church, 82 Ohio St.3d at 503. Normally, a court will assess each of these factors when resolving the timeliness issue. Lynch at JJ 50-51; State ex rel. First New Shiloh Baptist Church at 503-05 This case remains in its early stages. This litigation was initiated this year. Defendants filed their Answers less than a month ago. Furthermore, because Jackson’s proposed complaint is identical in substance to O’Neal and Tibbetts’s as well as Van Hook’s complaints, and differs only by Jackson as being named as a plaintiff, there is no hardship for Defendants. (Jackson has even numbered his proposed complaint so that the paragraph numbers are the same as O’Neal andFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 OE232 - H86 Tibbetts’s complaint, leaving a paragraph blank for convenience of matching the complaints.) Jackson seeks to intervene to protect his rights and if, anything, speed up this litigation by a few weeks, not delay it. Jackson was not aware of this litigation before June 19, 2018, because he had been abandoned by his counsel for the last several years. See Motion for Appointment of Substitute Counsel, Jackson v. Houk, 6th Cir. No. 08-3677 (June 13, 2018) (ECF 240) (Exhibit A). Undersigned counsel was appointed to represent Jackson only on June 19, 2018. Order, Jackson v. Houk, 6th Cir. No. 08-3677 (June 19, 2018) (ECF 241-1) (Exhibit B). Jackson has therefore moved promptly for intervention since his current counsel has informed him of the litigation. Moreover, Jackson’s complete abandonment by his prior counsel, while facing an impending execution date, is indeed an unusual circumstance that militates in favor of letting him intervene. He should not be unduly punished for the failures of his appointed counsel Accordingly, this Court should order that Jackson be permitted permissive intervention. If. Jackson satisfies the procedural issues contained in Rule 24(C). The proposed intervenor must serve the “motion to intervene upon the parties as provided in Civ.R. 5. The motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is sought.” Civ.R. 24(C). Jackson in this pleading identified the grounds for intervention and attached the requisite pleading a copy of a proposed. Finally, upon the filing of this document Jackson will serve all of the parties in accordance with Rule 5 IV. Conclusion For the foregoing reasons, Cleveland Jackson respectfully requests that his motion be granted and that he be permitted to intervene in the instant actionFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H87 Respectfully submitted, Office of the Federal Public Defender for the District of Arizona /s/ Dale A. Baich Dale A. Baich (Ohio Bar No. 0025070) Assistant Federal Public Defender Email: Dale_Baich@fd.org 850 W. Adams St., Suite 201 Phoenix, Arizona 85007 Telephone: (602) 382-2816 Facsimile: (602) 889-3960 Counsel for Cleveland JacksonFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 7:52 PM-18CV000758 0E232 - H88 Certificate of Service Thereby certify that the foregoing Cleveland Jackson's Motion To Intervene As Plaintiff- Intervenor was filed by electronic transmission on July 12, 2018 and was sent by regular first-class mail to Counsel for Plaintiffs and Defendants: S. Adele Shank - 0022148 Lawrence J. Greger - 0002592 3380 Tremont Road, Suite 270 120 W. Second Street, Suite 1100 Columbus, Ohio 43221-2112 Dayton, Ohio 45402 Attorney for Plaintiffs O'Neal & Tibbetts Attorney for Plaintiffs O’Neal & Tibbetts Randall L. Porter - 005835 Assistant State Public Defender Office of the Ohio Public Defender 250 E. Broad Street, Suite 1400 Columbus, Ohio 43215-9308 Attorney for Plaintiff Van Hook Zoe A. Saadey — 0089181 Charles L. Wille — 0056444 Assistant Attorney General Assistant Attorney General Criminal Justice Section Criminal Justice Section Capital Crimes Unit Capital Crimes Unit 150 East Gay Street, 16'" Floor 150 East Gay Street, 16" Floor Columbus, Ohio 43215 Columbus, Ohio 43215 Attorney for Defendants Attorney for Defendants /s/ Dale A. Baich DALE A. BAICH - 0025070 Attorney for Cleveland Jackson