LFC Comments by Brian Massie, Lake County taxpayer / June 4, 2022
We are eagerly following the on-going case between Judge Eugene (1%) Lucci and his band of merry men and women and the Lake County Clerk of Courts, Faith Andrews. Since we are not biologists, we may be creating a faux pas by using the term “men and women”, but what the heck, we will live on the edge for our readers. Also, we apologize in advance if we use the wrong pronoun when describing these elected officials that our society has previously placed on pedestals making them off limits to criticism.
We found a couple of articles dealing with an Ohio judge usurping the authority of his Clerk of Courts.
Judge creating his own clerk of court may be illegal
By Tom Jackson Dec 16, 2019 12:00 AM
Here are some pertinent excerpts from this article:
SANDUSKY — A Sandusky County judge’s decision to avoid using the elected local court clerk to handle court records appears to be against the law, says a Cleveland attorney who specializes in public records law.
Common Pleas Judge John Dewey named his court administrator, Brock Kimmet, a deputy court clerk on June 25 to handle court records related to the Tim Braun case, but didn’t notify the county’s elected court clerk, Tracy Overmyer.
Taking the action secretly without informing the court clerk also appears to be dubious legally, said Brian Bardwell, a Cleveland attorney who specializes in First Amendment and government records law. Doing something in secret is “presumptively illegal,” Bardwell said.
Dewey’s appointment of Kimmet as a deputy clerk also is unusual. Other county court clerks said they have never heard of such an order.
In his order appointing Kimmet, Dewey wrote, “All filings in this matter are to be filed with him and are to be kept under seal until further advised by the court.”
She said she had nowhere to go to obtain a legal opinion on whether Dewey’s action followed the law. Providing legal advice to county agencies is the responsibility of the county prosecutor.
On Tuesday Overmyer asked county commissioners to allow her to hire legal counsel to review Dewey’s order and Kimmet’s role in circumventing her authority.
Bardwell said that by Ohio law, dealing with court records is the duty of the clerk of courts, and he knows of no law allowing the court to transfer that responsibility to someone else.
“Ohio law says that the voters get to decide who’s in charge of court records, and they make that decision by electing a clerk of courts. Every judge in the state is familiar with the rules making it mandatory that case records be filed with the elected clerk,” Bardwell said. [Emphasis added by LFC’
“As far as the First Amendment goes, the whole point of having a clerk of courts elected separately from the judges themselves is to make records available to the public so they can be confident the courts are administering impartial justice instead of protecting their friends,” he said.
““The courts have a lot of power to decide how to manage their cases, but putting court employees in charge of their friends’ criminal records makes the elected clerk pointless.”
“People are particularly skeptical these days of all the neutral institutions that keep our government functioning, so it doesn’t really matter whether the court has a good reason to do something like this — everyone’s going to think it’s fishy. If the courts want to retain their legitimacy, they have to work even harder to avoid anything that might make the public wonder whether they’re playing favorites,” he said.
Court rules that require judges to file documents with the clerk of courts come from the Ohio Supreme Court.
LFC Comments: Here is a follow-up article dealing with this case.
All’s well that ends well?
By Matt Westerhold Mar 19, 2022 8:00 AM
FREMONT — The Ohio Disciplinary Counsel finally returned an opinion on some of the issues raised by a local activist in grievances she filed against former Sandusky County Common Pleas Court Judge John Dewey and others.
Dewey appointed his court administrator, Brock Kimmet, to serve as a secret deputy clerk of courts for a secret criminal investigation of former Sandusky County prosecutor Tim Braun in 2019. The Register learned about the appointment and reported about it, and Elsebeth Baumgartner filed grievances related to it.
“Judge Dewey did not have the authority to appoint a ‘special deputy clerk,'” states a Feb. 4, 2022, letter to Baumgartner from the disciplinary counsel responding to the grievance.
|Joseph Caligiuri, the Ohio disciplinary counsel.
The response comes more than two years after Baumgartner filed the grievance, which the disciplinary counsel’s office is insisting must be kept secret. The disciplinary counsel, Joseph Caligiuri, refused to comment about what was decided.
“Due to our confidentiality rules, our office cannot confirm or deny the existence of a complaint against Mr. Dewey,” Caligiuri wrote in a March 7 email to the Register in response to questions about the complaint sent to him.
The Register obtained a copy of a two-page decision. It asked Caligiuri why it took more than two years to respond to the complaint. He also was asked if the secrecy his office requires is to serve the public or if it is designed to protect court officials when they are the subject of a complaint. Caligiuri also was asked why disciplinary rulings, opinions and actions are kept secret. [Emphasis added by LFC]
He also was asked if the disciplinary counsel’s office made other determinations about public corruption cases that were kept secret or if the other complaints Baumgartner made were being ignored.
Caligiuri declined to answer those and other questions.
|Sandusky County Judge John Dewey Register file photo
Dewey, Kimmet and Braun all resigned after Baumgartner filed the grievances and after the Register began reporting about the unusual arrangement, which the office of the disciplinary counsel determined was a violation of the judicial code of ethics.
“Appointing Kimmet to this position, despite knowing Kimmet was Braun’s friend, created an appearance of impropriety in violation of Jud.Cond.R 1.2,” the disciplinary counsel wrote Baumgartner in the Feb. 4 letter.
Jud.Cond.R 1.2 states that “a judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” [Emphasis added by LFC]
The counsel’s office did not recommend any disciplinary action be taken against the retired judge.
“Our office has proprietorial discretion in determining which cases warrant formal disciplinary action,” the Feb. 4 letter states. “Moreover, the Code of Judicial Conduct states that ‘it is not contemplated that every transgression result in the imposition of discipline.'”
Caligiuri declined to say why there was a decision against reprimanding Dewey or holding him accountable, or answer why it’s important to keep the violation he committed secret.
A judge appointing a special deputy clerk circumvents the will of the people since the specific duties of the clerk are assigned to an elected official, who is the only person authorized to serve in that role or appoint deputy clerks. [Emphasis added by LFC]
The prosecution of Tim Braun was criticized severely by private individuals, court and elected officials across the state.
Many critics complained that Braun’s court case was fixed, including his victims. Caligiuri declined to comment on whether it was a fixed court case. Baumgartner suggested the office of disciplinary counsel was whitewashing the extreme and serious dysfunction in the court and the court process.
“The damage done by Dewey and Ohio Attorney General Dave Yost’s failure to investigate the prosecutor and judicial misconduct over the years is incalculable,” Baumgartner said.
Dewey has over the years refused to respond to numerous inquiries from the Register seeking an explanation. When he announced his resignation in May 2020, he told another newspaper he was not constricted by the limitations in state law in appointing a special clerk, according to an article in the the Fremont News-Messenger. He’d done the same thing — or the local court did — before, according to the News-Messenger, when Sheriff Kyle Overmyer and Detective Sean O’Connell both faced criminal trials.
Baumgartner said it “appears that Dewey retired once he learned of my grievance. Probably a side deal with the office of the disciplinary counsel … retire and we will not pursue it hard. Same story with Braun, who was charged with just a small portion of the misconduct (he committed).”
Baumgartner cited a series of cases that she said were mishandled by the former sheriff, by former police chiefs and by the courts: the 2012 death of Jacob Limberios; the 2007 death in the Sandusky County Jail of Craig Burdine; the murder of Heather Bogle in 2015 and detective O’Connell’s false claims that three African Americans were involved in killing her; the 2013 failed investigation of serial rapist McClain Durst; the wrongful arrest and imprisonment of Patrick Baker Sr; and others, including her own criminal case and wrongful imprisonment.
|Kimmet looks on as Braun signs official paperwork to become county prosecutor during a swearing in ceremony, Dec. 22, 2016. Register file photo
She claims the disciplinary counsel is protecting friends in the court system the same way Dewey and others allegedly protected their friends and associates like Braun and the litany of others over the years while going after and taking down anyone who threatens to expose the corruption.
“What really angers me is the office will not concede I was right not only about Dewey but the many other cases where visiting judges and special prosecutors undermine and obstruct justice,” Baumgartner said. “The office disbarred me for making ‘false statements’ about government employees that were in fact true and 20 years later still can’t bring itself to intercede in the midst of a blatant rigged case.”
Braun was accused of sexually harassing female employees of the prosecutor’s office, stalking one employee and improperly touching two employees. He also allegedly started a fake criminal investigation of two of the women who complained about his behavior in an effort to intimidate them. Judge Dewey authorized search warrants that enabled Braun to obtain the women’s phone records and text messages.
Braun pleaded out to a misdemeanor at trial and did not dispute the allegations made against him. He was sentenced to probation.
While Dewey, Braun and Kimmet all were allowed to retire and collect their pensions, she was stripped of her law license, and the court sent her to prison for five years, Baumgartner said. Braun was the special prosecutor in her criminal case — years earlier — and was appointed in an unlawful manner, she contends.
The disciplinary counsel refuses to take a deep dive and look at the real issues, she said.
“The office of disciplinary counsel never addressed my allegations against Braun and others and it sealed my file,” Baumgartner said.
Office of Disciplinary Counsel
The Office of Disciplinary counsel is an affiliated office with the Ohio Supreme Court. It is authorized to educate, investigate and prosecute attorneys and judicial officers who are accused of ethical misconduct. All attorneys who practice law in Ohio must follow certain rules called the Ohio Rules of Professional Conduct. Judicial officers, judges and magistrates, have an additional set of rules they must follow called the Code of Judicial of Conduct. The Disciplinary Counsel reviews complaints, called “grievances,” from the public, judges and other attorneys to determine whether there is evidence of unethical conduct. If such evidence exists, the Office of Disciplinary Counsel investigates the allegations of misconduct and, when appropriate, files formal disciplinary charges. Read more at https://www.supremecourt.ohio.gov/LegalResources/Rules/govbar/govbar.pdf (Source: https://www.odc.ohio.gov/)
Where are they now?
|Screenshot provided by the state Bureau of Criminal Investigation from surveillance video. The caption with it is “Braun with files at courthouse.” Braun started a false criminal investigation after the files went missing.
Braun, the former Sandusky County prosecutor, was forced to resign after he was convicted in a plea deal after being accused of sexually harassing employees, stalking one employee and improperly touching two employees. Braun also allegedly started a fake criminal investigation of two of the women who complained about his behavior and Sandusky County Common Pleas Court Judge Dewey granted him search warrants for telephone records and text messages the women exchanged. Braun did not dispute the allegations at trial. He was granted probation and allowed to collect his full pension.
Dewey is the former Sandusky County judge who resigned after Baumgartner filed a grievance with the Ohio Disciplinary Counsel. The Register learned and reported that Dewey appointed his court administrator to act as a secret court clerk in the criminal investigation of Sandusky County prosecutor Tim Braun. The disciplinary counsel found that Dewey violated the judicial code of ethics but imposed no disciplinary action. Dewey resigned in 2020, contending his decision to step down was unrelated to the Register’s reporting or the grievance against him that Baumgartner filed.
Kimmet was the court administrator improperly appointed to be the “special deputy court clerk” overseeing the criminal case against his good friend, Sandusky County Prosecutor Tim Braun. Kimmet resigned in 2020.
|Former Sandusky County Sheriff Kyle Overmyer (left) and former Sandusky County sheriff’s detective Sean O’Connell (right).
Sheriff Kyle Overmyer
Overmyer was defeated for re-election in November 2016. He was indicted on multiple theft and drug charges in August 2016 after the Register reported that he had stolen drugs from the evidence room at the sheriff’s office. Overmyer, the commander of the county drug crime task force at the time, admitted to being an opiate addict. He was convicted after a plea deal and served four years in prison. After prison, he started work in drug recovery.
Sheriff’s Detective Sean O’Connell
O’Connell was forced to resign after falsely accusing three African Americans of being involved in the murder of Heather Bogle, a 28-year-old single mother, in 2015. He manufactured evidence against them that was exposed in a series of Register news articles. O’Connell was convicted in 2017 after a plea deal and spent two years in state prison in protective custody.
Baumgartner, a former attorney, licensed pharmacist and entrepreneur, has been an activist for government accountability for more than two decades. In 2002, she was prosecuted for alleged crimes she contends were manufactured in a rigged case. She was disbarred in 2003 and lost her pharmacy license in 2004 based on evidence that she contends was manufactured by the involved attorneys, prosecutors and judges. In 2005 she developed and funded Erie Voices, a web-based local investigative and government accountability website. She and the webmaster were indicted in 2005 in Cuyahoga County for allegedly intimidating retired judge Richard Markus (now deceased). She was repeatedly jailed as a “domestic paper terrorist” during what she maintains was an unfair process and ultimately spent over 5 years in prison. She was released in August 2013. Since 2014, she has been active in local politics in Ottawa County and advocating for transparency in government. Tim Braun, the former Sandusky County prosecutor who resigned in disgrace after Baumgartner helped expose his mistreatment of female employees, was the special prosecutor assigned — illegally, according to Baumgartner — to prosecute both her (in 2002) and former state Rep. Steve Kraus (in 2014). She contends the Office of Disciplinary Counsel enables corruption in the court system through secrecy and selective use of special prosecutors and retired visiting judges to protect wrongdoers, and improperly stops people like her from exposing corruption and or receiving fair trials. [Emphasis added by LFC]
Clerk of Courts Andrews versus Judge (1%) Lucci is a very important case for all of Ohio’s elected Clerk of Courts, and citizens.
If Andrews prevails in her lawsuit filed with the Ohio Supreme Court then (1%) Lucci and Prosecutor Coulson will be exposed as having circumvented the will of the Lake County voters that elected Clerk Andrews.
If Andrews loses, then the Supreme Court will be saying to the voters that the Clerk’s position is really under the purview of the judges and prosecutors and the position is merely clerical in nature. Therefore, the Clerk of Courts position should no longer be considered as an elected office. This will permit unfettered power in the hands of prosecutors and judges, and that is never good for the average citizen.
Stay tuned, we will be “pulling back the curtain” as we get even more information from our public records requests. Cue the Law and Order sound effect: