Cicco et al., Appellants, v. Stockmaster et al.; Colonial Insurance Company of California et al., Appellees, 89 Ohio St. 3d 95

Lundberg Stratton, J. The issue before us is what constitutes proper service upon the Attorney General for purposes of former R.C. 2721.12 in a declaratory judgment action challenging the constitutionality of a statute, ordinance, or franchise.

For the reasons more fully set forth below, we hold that a party who is challenging the constitutionality of a statute must assert the claim in the complaint (or other initial pleading) or an amendment thereto, and must serve the pleading upon the Attorney General in accordance with methods set forth in Civ.R. 4.1 in order to vest a trial court with jurisdiction under R.C. 2721.12. Former R.C. 2721.12 stated: “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. In any proceeding which involves the validity of a township resolution, the township shall be made a party and shall be heard.” 144 Ohio Laws,

Part II, 2902, 2930. Effective September 24, 1999, the statute was amended to require that the Attorney General be served with a copy of the complaint in the action or proceeding in which a statute, ordinance, or franchise is alleged to be unconstitutional. Although the former version of R.C. 2721.12 required serving the Attorney General with “a copy of the proceeding,” the amended version of the statute expressly requires service of the “complaint.” The Ciccos did not raise any constitutional issues in their complaint or two amended complaints but, rather, asserted their constitutional challenges in their motion for

summary judgment. They sent a copy of their motion for

summary judgment to the Attorney General by ordinary mail. The Ciccos contend that because their motion, not their complaint or amended complaints, raised the constitutional issues, service of the motion for

summary judgment constituted service of “a copy of the proceedings” in accordance with former R.C. 2721.12. They argue that the Attorney General was in fact notified of the constitutional issues being addressed because she eventually filed an appearance in the case at the appellate level. Therefore, claim the Ciccos, the statute’s intent, to inform the Attorney General of attacks on the constitutionality of the laws of this state, was met.

Grange and Colonial contend that the Ciccos should have asserted their constitutional challenge in their complaint or amended complaints and should have served the Attorney General with a copy of the complaint or amended complaints in the same manner and at the same time as defendants are served. They claim that failure to do so circumvents the mandatory jurisdictional requirements of R.C. 2721.12. R.C. 2721.12 applies to actions where a petitioning party asks the court to declare the rights, status, or other legal relations of the parties.

It specifies who must be notified and given an opportunity to participate. The statute requires that all interested persons who would be affected by the declaration be made parties to the action. The statute specifically requires that a municipality or township be made a party when the validity of a local ordinance or franchise is challenged. Between references to a municipality and a township, the statute specifically identifies the Attorney General as an interested person in cases where the constitutionality of a statute is challenged.

Therefore, the context of the former statute implied that R.C. 2721.12 was intended to apply at the inception of a case, at the initial pleading stage, when interested persons are identified and made parties, if necessary. This

interpretation is reinforced by the language of the amended statute that mandates service of the complaint upon the Attorney General. Therefore, under the former version of R.C. 2721.12, a petitioning party seeking a court declaration that a statute is unconstitutional must assert the claim in a complaint or other initial pleading, or an amended complaint or amended initial pleading. The issue is not properly put before a court in a motion for

summary judgment. If the constitutionality of a statute arises at a point later in the proceeding, the party seeking such a declaration must amend the complaint (or other initial pleading) to properly plead the claim and identify all interested parties. Although the statute does not require that the Attorney General be made a party to the action, former R.C. 2721.12 requires a party seeking a declaration that a statute is unconstitutional to serve the Attorney General “with a copy of the proceeding^ that raises the constitutional issue.

Because the provisions of R.C. 2721.12 are to be applied at the inception of a proceeding, it follows that the Attorney General must be served in the same manner as those persons whom the statute requires to be made parties, ie., by the methods of service in Civ.R. 4.1. The word “proceeding” in the former version of the statute refers to the beginning of the action or the initial pleading stage in which the constitutional challenge is raised. Once the Attorney General is served pursuant to Civ.R. 4.1, then ordinary mail service is sufficient to serve the Attorney General with subsequent pleadings.

However, service by ordinary mail as described in Civ.R. 5 applies only to pleadings and other papers served upon parties or counsel subsequent to service of the original complaint and may not be used to initially notify the Attorney General of the proceeding, as.done by the Ciccos. We believe that by requiring that the Attorney General be served at the inception of the action, or when a constitutional challenge is initially pleaded, the General Assembly intended that the Attorney General have a reasonable amount of time in which to evaluate the issues and determine whether to participate in the case.

If the Attorney General elects to participate, then the Attorney General has time to prepare a response to the complaint, make an appearance, and be involved throughout the rest of the ease. Notification at the

summary judgment stage provides inadequate time for evaluation and response (usually fourteen days instead of twenty-eight days), and participation may be limited if pretrial discovery has already occurred. Service by methods in Civ.R. 4.1 also ensures reliability of notice and will provide a record that service was accomplished, including the manner and date of service. This

interpretation comports with the amended version of R.C. 2721.12 and our previous holdings that R.C. 2721.12 is mandatory and jurisdictional in nature. Malloy v. Westlake (1977), 52 Ohio St.2d 103, 105, 6 O.O.3d 329, 330, 370 N.E.2d 457, 458. A court lacks jurisdiction to render declaratory relief if the requirements in R.C. 2721.12 are not met. Id. Therefore, former R.C. 2721.12 applies at the inception of the declaratory judgment action, when the necessary persons or entities are made parties, as the amended version of the statute does.

When the Attorney General does not receive notice until after the trial court has rendered judgment or the case has been appealed, the party who is challenging a statute’s constitutionality has failed to meet the mandates of R.C. 2721.12. The Ciccos contend that, according to Ohioans for Fair Representation, Inc. v. Taft (1993), 67 Ohio St.3d 180, 616 N.E.2d 905, they satisfied the intent of R.C. 2721.12 when they mailed a copy of their motion for

summary judgment to the Attorney General. The party seeking relief in Taft sought a declaration that certain statutes did not apply to lobbying and petitioning activities of a political action committee. The petitioning party also sought, in the alternative, a declaration that if the statutes did prohibit its activities, those statutes were unconstitutional. The Attorney General represented the defendants in the case, then Secretary of State Bob Taft and the Ohio Elections Commission.

Although the petitioning party in Taft did not separately serve the Attorney General with a copy of its complaint, we nevertheless held that the trial court did have jurisdiction. We reasoned that the trial court had limited its declaration to the application of the statutes and it did not reach the constitutional question.

In addition, because the Attorney General had been intimately involved throughout the case since the complaint stage as counsel for defendants, the intent of R.C. 2721.12 had clearly been met because the Attorney General had actual notice of the constitutional challenge since the inception of the case. Here, the Ciccos improperly raised the constitutional issues for the first time in a motion for

summary judgment and improperly served the Attorney General. The issues should have been specifically pleaded in their amended or second amended complaints. As a result, the trial court lacked jurisdiction to decide the constitutional question. Therefore, the Ciccos failed to invoke the jurisdiction of the trial court to hear their constitutional challenges to R.C. 3937.44 and 3937.18(H). Consequently, appellants’ second proposition of law addressing the constitutionality of R.C. 3937.44 and 3937.18(

H) is not properly before this court. Accordingly, we affirm - the judgment of the court of appeals. Judgment affirmed. Moyer, C.J., Nader and F.E. Sweeney, JJ., concur. Douglas, Pfeifer and Cook, JJ., dissent. Robert A. Nader, J., of the Eleventh Appellate District, sitting for Resnick, J. . R.C. 2721.12, as amended, states: “(

A) Subject to division (

B) of this section, when declaratory relief is sought under this

chapter in an action or proceeding, all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding. Except as provided in division (

B) of this section, a declaration shall not prejudice the rights of persons who are not made parties to the action or proceeding. In any action or proceeding that 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 also shall be served with a copy of the complaint in the action or proceeding and shall be heard. In any action or proceeding that involves the validity of a township resolution, the township shall be made a party and shall be heard.” 1999 S.B. No. 58.