Pace gets his day in court

It was more like a half day, running from 2 p.m. to 4:45. I was a witness, and was ordered to be sequestered for the first hour so as not to hear BOE director Betty Smith’s testimony, so I couldn’t cover the whole thing for you.
I did tape my part of the proceedings and as long as I could stay- which was until 3:50, and will be posting it as a podcast at the end of this post.

Mark Gokavi from the Dayton Daily news was a bit perturbed, getting this assignment dumped on him at the last minute (they do read my site) and wrote a cursory story for tomorrow’s paper:

The Board of Elections ruled March 14 that Pace did not qualify to run for Dayton City Commission on the May 7 ballot because of a problem with his acceptance of candidacy — basically a signature — which had to be filed by March 13, according to Dayton’s city charter.

Steve Harsman, deputy director of the BOE, told the Dayton Daily mews earlier this month that his office received the signed acceptance from Pace via a fax, time-stamped 7:38 p.m. March 13. Pace had learned at 5:45 p.m. that he had not signed the statement on his previously filed petitions. Pace said Thursday he raced down March 13 to add his signature but that doors were locked at the county administration building.

The BOE met the morning of March 14, and Harsman said the body asked for a legal opinion from the city of Dayton’s law director, John Danish. Harsman had said that the BOE had not accepted faxed or e-mailed signatures in the past.

Danish said Pace’s fax was not sufficient.

“Our charter requires a candidate to file an acceptance of the candidacy,” Danish said. “And the word ‘filing,’ I believe under court cases, means physical delivery to a government office, and that a facsimile does not qualify.”

Pace’s attorney, C. Ralph Wilcoxson, questioned BOE Director Betty Smith on Thursday about why she didn’t match Pace’s faxed signature against those on his petitions and she said it was because it was not an original signature in ink. She also said a 2011 Ohio Secretary of State directive prohibits board of elections from pre-checking forms to ensure they satisfy the requirements of law.

Montgomery County Prosecutor’s Office civil attorneys John A. Cumming and Maureen Yuhas argued that Pace didn’t follow the law and making exceptions for candidates could lead to more risk of abuse and favoritism.

The three-judge panel of Judges Jeffrey Froelich, Mike Fain and Jeffrey Welbaum said they would deliberate and have a decision by April 8.

via Court to decide if candidate can appear on Dayton ballot |

Fain was the presiding judge, and shocked me when he attempted to swear me in and couldn’t remember the line most kids can recite by heart when playing lawyer “Raise your right hand, do you swear to tell the truth, the whole truth and nothing but the truth so help you God?”- Fain failed- needed prompting from Froelich and myself.
I’ve already posted some of the evidence in this case in prior posts. Unfortunately, we have a legal system, not a justice system, and process can interfere with common sense. The County prosecutors would have lost had there been a jury, with their constant motions and interruptions. Fain often ruled over them, to see where this was going, but their strategy was shaking Pace’s attorney from his game plan.
I don’t know what was discussed while I was in the hall, but, apparently getting testimony from only one source was good enough in some instances (which I found odd).

The key issue of what standing the nominating committee has, may not be included in this decision, thanks to an omission in Pace’s motion. While it may not have been in the brief, this could end up reopening the case again after the ruling. In the meantime, Pace is left without a definitive answer on his candidacy, and the clock to the primary is ticking down. The judges don’t help matters by giving themselves until the “drop dead date” for putting Pace on the ballot, a quicker ruling would be the better option on this time sensitive matter.

The key questions weren’t really discussed while I was in the court room, nor was I questioned properly to get the answers the court needed.

  • The first is why the meeting wasn’t held at its normal Tuesday at 11 a.m. time. I was asked if I knew what a quorum was by an irate Mr. Cumming- to which I gave more of an answer than he wanted by suggesting that the BOE members are paid $20K a year for 24 meetings, (or around $800 a meeting) and there is no excuse for the delay in holding this meeting. Harsman knew well in advance that he could knock Pace off the ballot, by requesting a decision from the law director. This piece of evidence almost didn’t make it into the record, as the prosecutors were trying to claim my publishing of it was just hearsay, despite it being public record.
  • The issue of Harsman evading supplying an agenda, and violating the Sunshine laws wasn’t argued at all, because no one believes the Sunshine Laws mean a damn thing.
  • And lastly, the standing of the nominating committee, who have been properly nominated, should be able to name someone to appear on the ballot, regardless of what the BOE says- since they met the required number of signatures.

Every time I go into a court, I’m reminded of how fragile our legal system is. In the right hands, it can be bent and manipulated into accomplishing almost anything- like getting OJ off. In amateurs’ hands, it’s brutal.

The will of the 500+ voters is the last thing to anyone involved in these proceedings, it’s all about nitpicking and exercising power.

The recording is lame, I did it covertly, but if nothing else, listen to the first minute to judge for yourself if Mike Fain is all there?





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