North Country Gazette



Right To Criticize Judiciary Focus Of Baumgartner Contempt Appeal

Posted on Saturday, 11 of August , 2007 at 11:55 pm

OTTAWA COUNTY, OHIO—Does a citizen have the constitutional right to criticize a judge or other public official without fear of retaliation by arrest and jail?

That question may soon be answered by the Sixth District Court of Appeals in the case of Elsebeth Baumgartner of Oak Harbor, former attorney, pharmacist and judicial whistleblower, as she has filed her appeal for her conviction last year by Judge David Faulkner on contempt charges. http://www.northcountrygazette.org/documents/TA6thdistbrief.pdf

Baumgartner served 120 days in Ottawa County Jail beginning late last year into this year after retired visiting judge Richard Markus filed contempt charges against her claiming that Baumgartner had insulted him during a defamation trial that he was adjudicating against her in December 2004, a civil action brought against Baumgartner by former Benton-Carroll-Salem school board member Kellen Smith. Markus decided the case in Smith’s favor.

At the conclusion of the trial, Markus filed his order for criminal contempt citations against Dr. Baumgartner. Within the order, Markus cited 32 statements made in pleadings which he characterized as criminally contemptuous conduct because the statements “brought the administration of justice into disrespect, with wildly unjustified verbal attacks on adverse counsel and each judge, which tended to embarrass, impede, and obstruct the court in the performance of its function”.

After claiming he had been subjected to Baumgartner’s “disgraceful” verbal assaults in the case, yet not providing a single transcript recording these alleged verbal comments which supposedly disrupted a court proceeding, Markus then listed 32 written statements allegedly isolated out of context of oftentimes an extensive legal pleading as meriting punishment as criminal contempt.

Markus concluded with a legal and procedural analysis section which Baumgartner says omitted several controlling U.S. Supreme Court decisions which prohibit using the contempt powers to punish speech critical of judges and or the court. Judge Markus noted that he would likely be a witness and therefore generously recused himself from the contempt case.

Baumgartner’s position has been that the U.S. Supreme Court held over 60 years ago that a judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him or punish speech critical of their actions, particularly not in court pleadings.

Although the trial on the contempt charges was concluded last March, Faulker delayed in rendering his verdict for seven months. On Nov. 28, two weeks before she was to begin trial in Cuyahoga County Common Pleas Court on Markus’ complaint that she had intimidated him by sending e-mail messages, Faulkner sentenced Baumgartner to Ottawa County Jail for 120 days and fined her $2,700, effectively stifling her from preparing for her upcoming trial in Cuyahoga County on the felony intimidation and retaliation charges in which Markus was the complainant.

In his decision, Faulker said that Baumgartner had claimed that her language “was nothing more than advocacy when the court failed to protect her rights and that as a citizen, she has a right to criticize the government and the administration of justice”. Faulkner said “the court finds nothing in the record to support such contentions”. The contempt charges were brought by Markus who claimed that Baumgartner had insulted him during the Smith defamation trial that he was adjudicating against her.

Markus later claimed that he was intimidated during the trial by Baumgartner because she told him that he fixes cases, is corrupt and is a rent-a-judge.

Faulker said that accusation levied against Markus by Baumgartner that “accuses both Judge Markus and Chief Justice (Thomas) Moyer of mob connections and perverted behavior” was “simply outrageous” although there was no proof presented that her allegation was false. Faulker claimed that Baumgartner’s allegations of corruption against Markus were “nothing more than an attempt to intimidate, demean and distract the court from its function

Baumgartner is represented in her appeal by Sandra Finucane of Gahanna, Ohio, who presents a plethora of strong constitutional arguments why the contempt convictions against Baumgartner, prosecuted by Ottawa County prosecutor Mark Mulligan, should be overturned.

The primary argument is that the Ohio indirect criminal standard is overbroad and vague in violation of the First Amendment to both the U.S. Constitution and the Ohio Constitution and that Baumgartner’s convictions violate due process under the Fifth and Fourteen Amendments because the Ohio standards purporting to define what constitutes indirect criminal contempt are void for vagueness in that they do not give fair notice of what conduct is prohibited.

Finucane argues that Baumgartner was denied her right to counsel by Faulkner and denied the ability to represent herself at a critical stage of the proceedings. “Punishing Mrs. Baumgartner for statements made within the context of the legal filings in the civil case denies her access to the courts, interferes with her right to petition for redress of grievances and is violate of the due process clause and Article 4 of the U.S. Constitution along with parallel rights she enjoys under the Ohio Constitution”, the appeal brief argues.

“The prosecution and four month incarceration of Mrs. Baumgartner as a result of her exercising her rights under the First Amendment is an unconstitutional retaliation of violation of the Equal Protection Clause”.

Finucane argues that Baumgartner’s convictions and sentence on 27 counts of indirect criminal contempt violates the double jeopardy clause of the Fifth Amendment, her right to confront witnesses under the Sixth Amendment was violated when Markus, the complaining witness, was permitted to testify to impermissible hearsay statements allegedly made by individuals who never appeared in court and were thus not subject to being cross-examined. “The admission of these statements also violated Mrs. Baumgartner’s right to a fair trial under the Fourteenth Amendment.

“Appellant’s convictions must be reversed because the state failed to prove beyond a reasonable doubt that Ms. Baumgartner’s conduct was contemptuous and her rights under the Fourteenth Amendment were violated by virtue of the fact that the presiding judge and trier of fact was a retired ‘visiting judge’”, Finucane argues.

The statement of facts summarizes the case. Beginning around 2001, Mrs. Baumgartner was a pro-se non-attorney party plaintiff and a counterclaim defendant in a civil lawsuit pending in the Ottawa County Court of Common Pleas, in which Markus presided. Appellant had filed a civil assault action against a former Benton-Carroll-Salem School District Board member, and became a defamation counterclaim defendant. After Ms Baumgartner’s own claims had been dismissed, and in the context of defending herself against the counterclaims and counterclaimants, she filed numerous documents with the court.

As a result of the content of several written filings, which consisted of notices, objections and motions, Judge Markus cited Mrs. Baumgartner with 34 contempt citations. Judge Markus, in his first contempt citation, alleged that Baumgartner’s conduct “caused three sets of counsel to withdraw and four judges to recuse themselves,” something about which he did not have much personal knowledge, nor was he able to completely substantiate. However, it was the content of the Mrs. Baumgartner’s legal filings which formed the basis for the contempt citations. In some of these documents, Mrs. Baumgartner challenged the jurisdiction and authority of the court.

The most allegedly inflammatory statements contained within the documents were instances in which she suggested that Judge Markus, Chief Justice Thomas Moyer, opposing counsel, the counterclaim plaintiff and other parties had engaged in various forms of misconduct.

The two primary witnesses were Judge Markus and Baumgartner. Markus testified as a fact witness and as an expert on the law of contempt in Ohio. He testified that he wrote the first section on contempt for the Common Pleas Judges Handbook. In his opinion, Mrs. Baumgartner’s conduct constituted contempt because it tended to cause the “entire public” to lose “respect” for him as a judge and the “entire judicial system.” In other words, his feelings were hurt

He testified that Baumgartner was seeking to “embarrass” the system and that her actions were the equivalent of hurling “rocks” at him.

Baumgartner testified at length concerning issues relating to her reasons for making the allegations. She testified, for example, that Judge Markus was without authority in the defamation case because had not filed a journal entry prior to conducting a pre-trial, and because she believes the retired visiting judge system is unconstitutional, unfair, and wasteful of taxpayer resources. She testified that Judge Markus engaged in ex parte conversations with opposing counsel and that he was allowing the opposing party to engage in discovery abuses.

She also objected to the fact that there were pretrials in the case wherein she was not present. Appellant also testified that she has been a vocal critic of Chief Justice Moyer and objected to his personally selecting Judge Markus to preside over several of her cases.

Faulkner found Baumgartner guilty of 27 counts of contempt, terming her written statements to be, among other things, attempts to “demean the judiciary as a whole and the trial judge in particular,” and to “cast doubt upon the validity of the legal proceedings and impede the progress of the action.”

The final argument of Baumgartner’s appeal brief attacks Markus serving in the position of a “retired visiting judge” and his failure to file his oath of office. http://www.northcountrygazette.org/documents/briefwnddraft4.pdf

“Mrs. Baumgartner had advanced a position below that Ohio’s visiting judge system was unconstitutional. Under her interpretation of the law, Section 6(C), Article IV of the Ohio Constitution does not permit judges over age of 70 to be elected or appointed to office. Because many visiting judges are over age 70, and do not have oaths on file in the County where they preside over particular cases, Mrs. Baumgartner believes that the entire visiting judge system in Ohio is unconstitutional. She also believes that because she has been a vocal critic of Chief Justice Thomas Moyer, his handpicking of visiting judges to preside over her cases creates the appearance of a conflict. To be valid, the oaths of office of judges must be filed with the clerk of courts. R.C. 2701.06, 305.02; see State ex rel. Belford v. Hueston (1886), 44 Ohio St. 1, 9; see Section 7 of Article XV, Ohio Constitution.

Faulkner is a retired visiting judge appointed by Chief Justice Moyer. “The issue for this Court to decide is whether the visiting judge in the case at bar had such a direct, personal, substantial, and pecuniary interest in the visiting judge system such that a ruling in Mrs. Baumgartner’s favor would have constituted a ruling against his own interest.

The Due Process Clause of the Fourteenth Amendment prohibits a defendant from being tried before a judge whose “substantial” and “direct” interests may be furthered by the outcome of the case. An interest is sufficiently substantial and direct to implicate the Due Process Clause where “the ’situation would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’”

Finucane argues that Visiting Judge Faulkner had a pecuniary interest which was furthered by the outcome of Mrs. Baumgartner’s criminal contempt case. The court overruled Baumgartner’s for a jury trial. Thus, she was denied her rights under the due process clause because a retired visiting judge was both the presiding judge and fact-finder”.

This article may not be reprinted without express written permission of the author. 8-11-07

Category: Constitution, Courts, Crime, First Amendment, Government, Ohio, Opinion

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