North Country Gazette



Ex-Attorney Imprisoned For Filing Civil Rights Claim

Posted on Sunday, 11 of May , 2008 at 9:43 pm

© The North Country Gazette

CLEVELAND—She’s one of 59 individuals designated in Ohio as a “vexatious litigator”.

Now she sits in Cuyahoga County Jail awaiting transport to the Ohio Reformatory for Women in Marysville, Ohio, because she filed a civil rights claim in the U.S. District Court for the Southern District of Ohio. 

In December 2006, disbarred attorney and former pharmacist Elsebeth Baumgartner of Oak Harbor was sentenced to eight years in prison, essentially for writing e-mails expressing her opinion to an aged retired visiting judge, Richard Markus, 76, who is still sitting on the bench adjudicating politically sensitive matters, assigned by Chief Justice Thomas Moyer although the Ohio Constitution mandated his removal from the bench at age 70. She was also criminally charged for making alleged defamatory statements against Markus in court filings for a case in which she was representing herself although the law provides for absolute immunity for statements made in such court pleadings.

Baumgartner had been charged with the intimidation and retaliation of Markus as well as Bryan DuBois, her former business partner in a blog called erievoices.com which focused on alleged corruption in northern Ohio. In the DuBois complaint, it was charged that she had intimidated him by allegedly posting comments directed at him and his wife at Erie Voices.

Baumgartner had pleaded no contest to 11 felony counts of intimidation and retaliation for the purpose of removing the action from the court of Shirley Strickland Saffold, Cuyahoga County Common Pleas Court judge, because she felt that she could not receive a fair trial due to what she labeled Saffold’s prejudice and alleged conflicts. She sought to move the action to the appellate level.

Saffold sentenced her to four years in prison on the Markus complaint and four years in prison on the DuBois complaint, to be served consecutively rather than concurrently.

As part of the plea bargain agreement, Saffold agreed to release Baumgartner on a $50,000 appellate bond while she filed her appeal but Saffold set conditions that Baumgartner “shall file no lawsuit in any court against any public official without the express written permission” of Saffold and that she “shall make no public, derogatory, factual statement about any public official without reasonable cause to believe it is true”.

But the question is if Saffold has legal authority to stop Baumgartner from filing in federal court and did Baumgartner knowingly and willfully agree to the terms.

A “public statement” was defined in the court order to include any statement intended for publication on an internet website, an oral or written statement to any governmental entity or any other publication for the general public. “A factual statement asserts specific provable conduct and is not a mere expression of personal opinion.

Saffold had decreed that any violation of either or both or these conditions shall be grounds for immediate revocation of bail and immediate incarceration.

Saffold is a state court judge and has no authority in federal court, thus there is a jurisdictional question if Saffold can control whether or not anyone, including Baumgartner, files proceedings in federal court.

On April 7, Baumgartner filed what’s known as a 1983 action, or in other words, a civil rights complaint, in federal court against officials of the Ohio State Board of Pharmacy, Chief Justice Moyer; Lori Brown, counsel for the Office of Disciplinary Counsel, Commissioners on Grievances and Discipline, Ottawa County prosecutor Mark Mulligan and Erie County prosecutor Kevin Baxter.

Baumgartner described herself in the lawsuit as “a whistleblower who lost both her professional licenses in retaliation for exposing case fixing and drug abuse among members of the Boar of the State of Ohio as overseen by Ohio’s Chief Justice Thomas Moyer and the Office of Disciplinary Counsel of the State of Ohio”.

Baumgartner’s lawsuit, which she was forced by Saffold to withdraw on Friday, arose “from a complaint initiated based on information and belief by Lori Brown and Thomas Moyer with the Ohio State Board of Pharmacy on or about Oct. 17, 2004 seeking to revoke Plaintiff’s license to practice pharmacy based on findings/diagnosis by Thomas Moyer of the Ohio Supreme Court without any medical evidence that Plaintiff is mentally ill and impaired to such a degree that she was unfit to practice pharmacy”.

Baumgartner claimed that the defendants had conspired against her “to defame and discredit” her due to “her representation of Krista Harris, an African-American female and in order to prevent her exposing widespread drug dependency/drug diversion among bar members so that statewide pay to play contracts, case fixing, and drug diversion schemes protected at the highest levels of Ohio state government would not be exposed”. She claimed that the Ohio State Board of Pharmacy and its staff had denied her constitutional rights in retaliation of her efforts to “expose defendants’ involvement in racketeering activities and/or to undermine an investigation into their criminal activities, specifically drug diversion or abuse among State of Ohio bar members and law enforcement officers”.Baumgartner’s appeal of her conviction is still pending in the Eighth District Court of Appeals. On Friday, Saffold revoked Baumgartner’s bond and ordered that she immediately begin serving her eight year sentence. She could be eligible for parole after serving five years.On April 5, 2004, Markus and Ottawa County prosecutor Mark Mulligan had teamed up to declare Baumgartner a “vexatious litigator”. Mulligan had brought the action before Markus. Baumgartner failed to appear for the hearing and did not mount a defense. Markus, officially retired, had been “recalled to service” for the action and assigned to the case by Chief Justice Moyer.The order signed by Markus with a shaky signature prohibited Baumgartner from instituting any new legal proceedings in the state courts—the court of claims, a court of common pleas, a municipal court or a county court without the permission of Markus. There was no order issued pertaining to federal court filings, just Saffold’s questionably constitutional order prohibiting her from making any complaint against any public official. 

Neither Baumgartner nor her attorney, Ken Myers, were afforded any opportunity to speak Friday during the bond revocation hearing

http://www.sconet.state.oh.us/Clerk_of_Court/vexatious/02-CVH-025.PDF

By Ohio statute, the definition of a “Vexatious litigator” means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions.

“Vexatious litigator” does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions.

Baumgartner had been permanently disbarred as an attorney in September 2003, charged with professional misconduct, including allegations that she made numerous unfounded accusations of criminal and unethical activity against private individuals and public officials and also compromised her clients’ interests. She denied any misconduct but admitted that she had accused various judges, prosecutors, law enforcement officials, and members of the local school system, among others, of wrongdoing to expose what she considered to be public corruption.

http://caselaw.lp.findlaw.com/data2/ohiostatecases/2003/2003-ohio-4756.pdf

A year later, on Sept. 3, 2004, the Ohio Board of Pharmacy permanently revoked her license after she failed to obtain the psychiatric examination ordered by the board in April when they had suspended her license. The board had given her the opportunity for reinstatement and had ordered that she had to obtain, within 120 days an indefinite suspension in April 2004, a full psychiatric evaluation by a psychiatrist licensed to practice in Ohio and must abide by the treatment plan as designed by that psychiatrist. She failed to do so and her pharmacy license was revoked.http://pharmacy.ohio.gov/minutes/mins04040507r.htmBaumgartner has consistently maintained that Saffold has a prohibited conflict of interest in adjudicating the case against her as she had been the presiding judge in Baumgartner’s appeal of the revocation of her pharmacy license but Saffold vehemently denied it in a display of temper from the bench.However, court records dispute Saffold. As alleged by Baumgartner, the records do show that the pharmacy board made their initial decision to indefinitely suspend her pharmacy license without any medical evidence that Baumgartner was an “impaired pharmacist”. The board took the word of certain Ohio judges and lawyers, all of whom Baumgartner had accused of misconduct, that she might be “mentally ill.”

While presiding at Baumgartner’s appeal, although there still had been no medical evaluation of Baumgartner entered into the record, Saffold ruled that she was a mentally impaired pharmacist.

In the pharmacy appeal before Saffold, Markus had filed a notice with Saffold against Baumgartner indicating that he had deemed her a vexatious litigator and that Baumgartner was not allowed to represent herself and would need a lawyer. Markus, a witness and complainant in the case against Baumgartner, then ordered Saffold that if Baumgartner attempted to proceed in appealing the revocation of her pharmacy license that Saffold was to immediately dismiss the case.

“None of what you say is true”, Saffold shouted from the bench, in an blatant display of prohibited judicial distemperment.

But the time stamped copies of documents on file in the Cuyahoga County Common Pleas Court show otherwise.

Baumgartner’s federal suit filed on April 7 and withdrawn by force of the court claimed, as quoted from the claim:

“This case implicates enormous issues of public policy, to wit: Defendants herein conspired to falsely accuse Plaintiff Elsebeth Baumgartner of being an impaired pharmacist and take her pharmacist’s license in order to prevent her from exposing widespread drug abuse, dependency, diversion and or trafficking among judicial and executive branch employees to wit: Kevin Baxter of Erie County, Mark Mulligan of Ottawa County, William Mason of Cuyahoga County, and Jeffrey Strausbaugh of Defiance County.

On Nov. 8, 2001, after discovery of over 8 suspect deaths tied to a law enforcement and judicial drug trafficking and pornography ring in Northern Ohio and receipt of another death threat, plaintiff, a member of the Bar of the United States District. Northern District Court filed a petition for the establishment of Special Grand Jury to investigate Public Corruption in Ohio on behalf of herself, several clients, and residents of Northern Ohio.

In December 2001, Plaintiff undertook representation of African-American Krista Harris in a criminal case in Erie County Common Pleas Court.  Ms. Harris provided an affidavit attesting to the fact that she was coerced into a sexual relationship with Erie County Prosecutor Kevin Baxter under threat of criminal charges and was forced to provide perjured testimony so that Baxter could obtain tained murder convictions on three African American males who allegedly competed with Baxter in illegal drug trafficking.  (Editor’s note: http://www.ca6.uscourts.gov/opinions.pdf/08a0013p-06.pdf )

25. On Jan. 2, 2002, Plaintiff Elsebeth Baumgartner spoke at the council meeting of the City of Port Clinton, Ohio. She informed the council that they should table consideration of entering into a dockage contract with Island Express Boat Lines, Ltd because one of its principal owners was the subject of a criminal investigation by BCI, was a prosecutor and it appeared the contract violated Ohio law and was the . subject of complaints by two of Elsebeth Baumgartner’s clients for committing serious crimes, to wit: rape, drug abuse, theft of public funds, and cover up of murder. 26. On Jan. 7, 2002, Plaintiff Elsebeth Baumgartner was criminally charged by private citizen Joe Fratoe for the crime of falsification for the statements made on January 2, 2002. Fratoe was a business partner of Baxter’s.27. On or about Feb. 7, 2002, Plaintiff filed a large supplement (in one of her cases) seeking justice department prosecutors to investigate a state wide problem with selective enforcement and investigations of drug, theft and sex crimes based on race and or position.28. On or about July 26, 2002, Plaintiff was convicted of the unconstitutional misdemeanor crime of falsification, per O.R.C 2921.13 in Ottawa’s Municipal County Court for reporting the alleged crimes of Erie County prosecutor Kevin Baxter on behalf of her clients to public officials at a public meeting. During the trial Plaintiff was found competent to stand trial but denied the right to call her psychologist as a witness to testify to the rational basis of her beliefs. As part of her probation terms Plaintiff was ordered to submit to forensic examination for treatment of judge diagnosed “paranoid apprehensions” a non existent mental disorder.29. On or about Feb. 11, 2003, Plaintiff served upon Defendants Brown and Moyer copies of psychological evaluations by Dr. Darlene Barnes, her private psychologist. Defendant Moyer struck the filings from the record but based upon information and belief retained copies of all documents submitted to the court. Dr. Barnes specifically found that Plaintiff did not suffer from any mental illness that impaired her ability to practice law or pharmacy.

30. On or about March 25, 2003, Defendant Brown, when questioned by Justice Pfeiffer concerning Plaintiff’s mental health and Defendant Brown stated she believed Plaintiff to not be mentally ill. It was acknowledged that no medical reports or findings were part of the official record of the Ohio State Supreme Court.

31. In or about the summer of 2003, Defendant Dale Fritz learned that Ottawa County detention facility employees were administering and dispensing prescription drugs to inmates, that local officials had failed to investigate the alleged diversion of controlled substances from the Oak Harbor Junior High and that Defendant Baxter was allegedly obtaining 1,000 generic Vicodan tablets every two weeks diverted by an area pharmacist.

32. On or about Sept. 23, 2003 Defendant Ohio Supreme Court disbarred Plaintiff Elsebeth Baumgartner claiming she made false statements about public officials. In dicta the justices claimed Plaintiff was mentally ill. The decision was represented to be a per curium opinion but signed only by Defendant Thomas Moyer. 33. On or about Oct. 18, 2003 Defendants Brown, Moyer, Baxter and Mulligan caused to be filed before the Ohio State Board of Pharmacy a copy of the opinion claiming the dicta therein falsely claiming Plaintiff was mentally ill was evidence that Plaintiff was an “impaired pharmacist. 34. Under Ohio law, an impaired pharmacist is defined as dependent on psychoactive substances.35. As a result of the filing of the false finding by the Supreme Court, Defendants Winsley, Giacolone, Steuk, Rowland and the Ohio State Board of Pharmacy held a hearing on April 7, 2004 despite the fact that Plaintiff Elsebeth never received Notice of the nature of the charge against her said evidence consisting of the dicta opinion of non-medical professionals that she was mentally ill.36. Prior to the hearing Plaintiff faxed her objections to the Ohio State Board of Pharmacy and asked for a continuance of hearing date. Defendant Giacolone, president of the Pharmacy Board and an attorney denied the continuance and overruled the objections.37. Defendants Giacolone, Rowland, and Steuk a former co worker of Defendant Brown and employee of Defendant Moyer, permitted the admission of non-lay person opinion evidence that Plaintiff is mentally ill and or an impaired pharmacist.38. Defendants and Pharmacy Board staff repeated the false unsubstantiated allegations of mental illness and impairment and as a result permanently revoked Plaintiff Baumgartner’s pharmacist license without medical evidence. The diagnosing of mental illness or assessment of impairment without a medical license is the practice of medicine in the state of Ohio and is a crime.

Baumgartner could request judicial review of Saffold’s bond revocation. Her appeal in the case has not yet been finalized and it is unknown when it will be heard by the Eight District Court of Appeals and ruling issued. 5-11-08

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

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