Round 2: Esrati vs DPS and Dayton City Commission

Judge Skelton asked for both sides to file a memo arguing if ORC 121.22 trumped Rule 65, even though he made it clear that he believed it did to start the court arguments.

And he asked us to use a pen, not a shovel.

To me, the pen is the tool that changes history. Shovels are what you use to muck a stall. Lawyers love to shovel. I love to write.

So, my filing is 9 pages plus attachments. I strayed outside the lines of strictly interpreting the issue of ORC 121.22 vs Rule 65, by explaining all the actions of the task force amounting to repeated  and willful violations of the law. Since the defense tried to claim that a TRO as required by Rule 65 was moot, since they had already violated ORC 121.22, and that he believed that sticking to the law in the future would some how fix things- clearly had to be addressed (total bullshit, needing a bulldozer instead of a mere shovel).

Needless to say, the research was enlightening.

404 error of the county Clerk of courts site

The Montgomery County Clerk of Courts site doesn’t like my filing.

Unfortunately, the Courts website (the one with the 35 page instructions on use) gives a 404 error when trying to upload the the large document that the school task force was given during their illegal tour. I had to abbreviate it just to upload to the site. Acting in full transparency mode, I’m posting it here, now. I’m sure, this will give the advantage to the defense, who will now, re-write their memo, turning it in at the last minute- and wasting considerable tax payer dollars doing so.

That is the crux of the problem with ORC 121.22- the burden and risk, is all upon the plaintiff- who risks getting billed for court costs and attorneys fees if their motion is found to be frivolous. Public officials who break the law, on the other hand, suffer zero personal risk, having tax funded defense at their disposal.

It also turns out that removal from office has been a false threat, enforced almost never. Our “Sunshine Laws” are in practice, just blowing sunshine up our collective butt.

Or at least they have been in the past.

The actions of these elected officials and employees of the district have been so wrong, so wanton in their disregard for the law, that maybe, just maybe, this will be a case that makes a difference. Or not.

At this point, the judge will consider both filings, and then offer a conference call on how to proceed.

My call is that he issue the injunction, which allows me to begin the process of contacting the Open Government Unit to begin proceedings to remove Jeff Mims, Robert Walker, William Harris and Mohamed Al-Hamdani from office.

He should also order the task force disbanded, and all members ruled ineligible to discuss the issue of school closings because they participated in an illegal secret meeting. This means, Acting Superintendent Lolli, Associate Superintendent Burton and Treasurer Abraha would all have to sit this one out.

Mims would have to be replaced by election, the three school board members would be replaced by those chosen by current remaining members, John McManus, Sheila Taylor, Jocelyn Rhynard and Karen Wick Gagnet, from members of the community that ask to sit on the board.

The only thing left to decide in court, is how many times they broke the law, and how many times the $500 fine should be counted.

Here are the documents for you to read, which are also available on the County Clerk of Courts site.

thumbnail of Rule 65 or ORC 121 – v3

The Esrati filing on which law to use

thumbnail of A-1 Citizen Advocacy Center Explaination of Sunshine Laws SM

A guide on the sunshine laws in Ohio that is clearer than the AG’s version

thumbnail of A2 Violating government-access laws rarely results in punishment for the offenders | Reporters Committee for Freedom of the Press

Document From Media and the law explaining that Sunshine Laws are weak.

thumbnail of A-3 Re Public records request- tour docs

Public Records Request from David Esrati to the School Board for the documents used on the tour

thumbnail of A-4 Task Force Docs – Tour Day 2-6-18abreiviated

The abbreviated version of the task force document handed out on the bus

UPDATE

9pm Monday, 12 Feb 18 The city uploaded their response after 4pm. They had until midnight. It’s odd in that it focuses on the judges ability to shut down the task force, which wasn’t what he asked for, and some case law trying to grasp at straws that Rule 65 applies, without any specificity to the case.

UPDATE

9:15 am Tuesday, 13 Feb 18. The School Board attorney also filed a brief- more to the issue of Rule 65 and also arguing that the judge can’t disband a task force. Really? How can a task force that violates the sunshine law- by meeting in private, possibly contribute to any discussion the board will have about the issue of closing schools, and, how can any employee of the district, that helped coordinate these secret illegal meetings not put the board at risk of having any decision they make to close schools, instantly overturned? They can’t. And, the total page count of both their briefs equals mine. Yet, they miss the point of the special protections the sunshine laws are supposed to provide.

thumbnail of Brief Rule 65 and Disband.021218

The more competent response filed by the private attorney for the district. Still wrong.

thumbnail of Brief of defendants 31861677

The city filed for the school board. It’s short, and harmless

Judge Capizzi speaks out of school, and Mat Heck stifles similar free speech

Judges have a special place in society. They issue opinions, but, they really aren’t allowed to have any of their own.

In fact, the idea of electing judges is kind of ludicrous if you think about it. They may be a D or an R, but it doesn’t appear on the ballot. They may talk about their experience and training, but can’t say how they’d rule once elected. In other states, judges are picked by their peers, because, frankly, most voters couldn’t tell a well written legal brief from a pathetic one.

And when it comes to Juvenile Court Judges- they have to take an extra step of never revealing the identity of those they preside over.

Judge Anthony Capizzi

Judge Anthony Capizzi

So, when Judge Anthony Capizzi talks about juveniles who are set to appear in his court, before he’s made a ruling, before they’ve had a trial, while they are “innocent until proven guilty” he’s overstepping his boundaries in a way that should have him removed from the bench. Read the following.

Montgomery County Juvenile Court Judge Anthony Capizzi has said the four 16-to 17-year-olds in the Huber Heights robbery will automatically be bound over to common pleas court if he finds probable cause. Moving the two 15-year-olds to adult court, however, involves more discretion, the judge said.

Guns a game-changer

In a wide-ranging interview with this news organization last week, Capizzi said he is worried about a “generation of drug users” whose children are adversely affected.

“I believe we’re beginning to see long-term mental limitations or restrictions,” he said. “We all know a child’s brain doesn’t mature until age 24-25. What were they thinking? They just don’t think about two hours from now.”

As president of the National Council of Juvenile and Family Court Judges, Capizzi knows the latest juvenile crime data. There is a downward trend overall, “but the level of crime has shot up dramatically,” he said.

“Kids used to steal bicycles and break into garages. Now, they rob someone who has a cellphone and they have a weapon,” Capizzi said. “The fact that youth have weapons now changes the game.”

Although Plummer pointed a finger at juvenile court judges for being too lenient, Capizzi said some have accused him of being too tough, particularly when athletes are involved.

He said he was lit up by parents, coaches and administrators from a school he wouldn’t name after refusing to order the removal of a star player’s electronic ankle bracelet during the basketball playoffs.

“The bigger issue is they believe they can get away with whatever they want to do and they’re privileged,” Capizzi said.

Source: More youths join gangs, carry guns

But, when someone disagrees with Judge “Run his Mouth” Capizzi, all of a sudden, he’s entitled to special protection (article continuing)

Judges sometimes encounter more than just criticism. A 24-year-old man was arrested last week for allegedly threatening Capizzi after news surfaced that he was handling the Huber Heights armed robbery case.

“If I ever see him I’m beating the (expletive) outta him he better pray I don’t catch him downtown coming out of that building,” said a social media post that carried Capizzi’s photo.

Montgomery County Prosecutor Mat Heck announced Friday that Devin Wilson, 24, of Dayton, was charged with making threats toward a juvenile court judge.

Last I checked, the first amendment still applies. Like it or not, what Devin Wilson says, and does are two different things. And, yes, while threatening an officer of the court has criminal charges attached, the statements he was reacting to weren’t official rulings by the judge- which should be dealt with in court, via appeal, but the off-book ramblings of a Judge who spoke when he shouldn’t have.

Think about it.

Or, consider how screwed up things have become, when the President of the United States now says that Democrats in Congress were treasonous by not clapping for him. The same standard would have had the republicans in congress lined up and executed for sitting on their hands while President Obama spoke. Treason is serious stuff, as are threatening to beat up a judge, but, when is someone going to beat up the judge for speaking outside of court?

 

The Good Sam Scam Solution

good sam hospital in DaytonNan Whaley plays the victim, but never had a problem accepting money for her campaign from Premier employees. She never had a problem asking them to help pay to raise the city income tax either. And now, she wonders why they are going to close Good Sam, as they build out other beds in other parts of the county.

Not that saving .25% in income tax is the driver, it’s safety. No female nurses or doctors want to drive up Salem Avenue in the middle of the night. Past the AM PM Market where gunshots are frequent.

But here’s the deal, there is nothing the city, the NAACP, the ministers or even god himself can do to keep Premier operating on that site, and frankly, people should say thanks- and good riddance.

What the city can and should do, is tell Premier that you can’t trash the facility, you can’t tear it down, until it’s been on the market for two years. Just like what happens when we close a school building. At that time, any other health care system that wants to come into the market, should have the opportunity to buy the building that Premier has never paid a dime of property tax on, and open up as competition to the duopoly of Premier and Kettering Health Network.

We should be asking The James in Columbus if they want to come to Dayton, or the Cleveland Clinic, or UC Health, or a group of private doctors who want to band together to open their own facility- one where the CEO doesn’t pay herself $4 million a year, and sit on the board of CareSource, her largest client, and set the salary of their CEO at $3 million a year.

In fact, what needs to happen is we need to stop allowing companies to claim they are non-profit or serving the public good- and being allowed to skip paying for police and fire, and roads and water, etc- while paying CEO’s astronomical salaries. If you make more than 5x your average payroll, you can’t claim to be tax exempt or non-profit. It’s time that the taxpayers stop subsidizing the CEO class.

Another test would be if you receive more than 35% of your revenue from government, pay caps are in place. No one makes more than the President (current salary is $400K a year). If you can’t live on $1000 a day in Dayton Ohio, you shouldn’t be claiming non-profit status.

Any company that hires it’s own private police force should be charged a fee, equal to the officers pay, that goes to pay an extra Dayton cop. That would be called a “licensing fee” for providing a duplicative service to a public one. The reason we don’t have independent fire departments got figured out long ago, there is no legitimate reason for private cops- just like there is none for “contractors” who are really mercenaries in war zones. Sorry, you want to be a cop- work for the government, with proper oversight.

I’m pretty sure that if Good Sam was put on the market, we’d have a third option for health care in Dayton- and that it would start a price war that would benefit us all.

Commissioner Joey Williams promises not to cost taxpayers a standalone special election

Joey D. Williams- in ofice

Spelling error

The clock is ticking on when Dayton City Commissioner Joey Williams can resign, without causing a special election.

Word is that the responsibilities of his new job as president of Key Bank, raising kids, and having his wife working far away are demanding.

If Williams was to resign- there has to be a special election, unless a regularly scheduled election is eminent.

Sec. 5. – Vacancies.
Vacancies in the office of Commissioner shall be filled by special election to be held on a date determined by the Commission by ordinance, which date shall be not earlier than 60 days nor later than 90 days after such vacancy occurs, except that any vacancy resulting from a recall election shall be filed in the manner provided therefor.
The requirement of gathering 500 signatures is the issue- time has to be provided to gather them.
There is nothing specific in the charter about a minimum amount of time a petition can be out to qualify to get on the ballot. There is this however, suggesting the time line should be 90 days:
Sec. 24. – Time of Filing.
Which would preclude it happening for the primary.
However the question about timing for the general in the fall is key. When Mark Henry resigned, he did it immediately following the primary, allowing candidates to gather signatures and run for the special in November. Specials bring many candidates- since there is no run off election to thin the herd.
The fact that Mark Owens and the Montgomery County dems backed off from endorsing Carolyn Rice who is running from a protected seat to fill Dan Foley’s County Commission seat- and Mark Owens (Clerk of Dayton Muni Court and head of the party) said they had two good candidates including Rev. Darryl Ward- lends credence to them planning if Darryl loses to Carolyn in the primary- they can then usher him directly into Commissioner Williams seat, once again bypassing Rev. Darryl Fairchild who dropped out of the race when they endorsed Jeff Mims, and promised him a future endorsement- which they reneged on and gave to Chris Shaw.
This isn’t real news btw, since Williams has not resigned. However, it is insurance that Commissioner Williams won’t step down and cost the tax payers a standalone special election by his poor choice of timing. Standalone special elections are traditionally very expensive and have low turnout. Williams is too responsible of a public servant to do this to the people of Dayton.

David vs Goliath: round 1, or what do you call four lawyers installing a light bulb?

The Ohio Sunshine Laws are laws that mean well, but are designed with so many gotcha factors that people have to feel really pissed before they jump through the hoops. Like the first one: Get a lawyer. Pay the lawyer. Then filing fee ($330.50), then show up in court. Watch the government agencies who broke the law, show up in court, unprepared, with 4 lawyers to tell the judge you are wrong, and this whole thing is just David being an idiot (while their meters are running full tilt.).

Then we have to argue about what laws apply, even though Judge Richard Skelton made that very clear right off the bat. His reading of my brief and the law in question, ORC 121.22 said to him that Rule 65- the procedural rule used for asking for a Temporary Restraining Order, said that since the Sunshine Law had remedies (what he’s supposed to do to punish the lawbreaker) there was no need to bring in Rule 65, which is a federal law. In other words, the specific rules of the State law apply because the the general rule (rule 65) is controlled by the specific one. Did I lose you? I hope not.

I was wondering why even with their expert on the Sunshine Laws they weren’t ready to discuss the merits of that part of my filing?

This wasn’t an actual trial, so I wasn’t allowed to introduce evidence. All I could do was to turn to my filing to ask for relief.

Skelton stated a few things that made a lot of sense to me (but apparently, Brian Wildermuth, attorney for the District, wants to pick a fight with a judge known for being feisty): one, that laws are generally in place to “do the right thing.” Two- that while unable to guide me, he’s working toward transparency, and understands that this law in particular is written in mostly plain terms- in order to make sure the people keep their elected officials in line.

Wildermuth tried to say that I’d been allowed to attend and video meetings and that they’d comply in the future, and that this one “bus trip” is over, and therefore there was no need for my case. Totally denying the fact that I was shut out of the bus trip- and that what happened in their closed rolling yellow conference room was a meeting held in secret, as was the tour of Valerie Elementary. They also claimed that they cut short the trip, after hearing from the judge that this may be a violation.

If you watched the videos from facebook live- or my edited video of the event, you’ll know that yours and mine idea of cutting off a bus tour would mean, stop doing what you are doing and return home. A go to jail, go directly to jail, do not pass go, do not collect $200 moment if there ever was one. The bus continued on from Valerie, to Meadowdale Elementary and Meadowdale HS and then to Wogamen middle school and then back to DPS.

Let’s also be clear, that the government bodies could send 4 lawyers on your tax dime to deal with my complaint, yet, none were prepared to answer the case.

Let’s also be clear, that the judge suggested to the lawyers yesterday to hold off on the tour, and that Dayton City Officials were told NOT to enter- hence my conversation with Jeff Mims outside Valerie on camera about my mom. Let’s also be clear, that Mohamed Al-Hamdani, the mastermind behind this task force, actually had the bus pull over between DPS HQ and Valerie so he could get off the bus. Some of the people knew better, but did it anyway.

My arguments were basic: That by participating in a single secret meeting, the committee has poisoned any decision that the schools may make on closing any buildings. School Board Members William Harris, Robert Walker and Mohamed Al-Hamdani would and should have to recuse themselves. Dr. Lolli, Burton, Treasurer Abraha, also have now poisoned themselves. Any closure could be challenged in court by the community saying deliberations were held in private- thereby, just like inadmissible criminal evidence, forcing whatever decision they make to be illegal.

The fact that Lolli keeps saying she has a right to do these things in public is an embarrassment. It’s really just time to do with her, what the board did with the woman who hired her- part ways. But, without the payoff. She can serve as a principal, or something until the end of the year, while we hire someone who can abide by the sunshine laws and not require a bunch of people picked illegally to advise them on what to do.

The sad thing about all this, is the lawyers want to continue with their charade of denial. This will be costly for the district. I look forward to depositions, and a trial, because, much like the Dr. Markay Winston EEOC investigation which ended up bringing the end to Rhonda Corr, I think I know the right questions to ask people under oath that will show that this district leadership, has acting illegally (I was chastised for calling it criminal, because there is a difference to lawyers- while the rest of us think that when you break the law, you are a criminal, they don’t think that way.)

Watch the video, read the briefs, examine how many times in the tour video that they said NO, YOU can’t come in. I believe everyone of those, times the number of people who should have known better equals $500 ea instance… but, we’ll see.

And remember while you’re on Youtube to subscribe to my channel. I need 1000 subscribers to monetize it. Thank you.

For the record, what do you call four lawyers installing a light bulb? More billable hours, and no one that actually knows how to turn on a light.