Baumgartner Files For Bond Citing Unconstitutionality
Posted on Sunday, 29 of June , 2008 at 9:30 pm
CUYAHOGA COUNTY—Apparently retired visiting judge Richard Markus doesn’t embrace the U.S. Constitution or subscribe to the constitutional guarantees provided by the First Amendment.
A bond condition that prohibits an appellant from exercising her First and Fourteenth Amendment right to petition for redress of grievance and to access the courts is unconstitutional and could never be voluntarily waived where the choice presented is either “no bond” or to “waive a constitutional right”.
Sandra Finucane of Gahanna, Ohio, attorney for disbarred attorney and judicial whistleblower Elsebeth Baumgartner has filed a motion for an appeal bond in the Eighth District Court of Appeals in Cuyahoga County.
Baumgartner is currently incarcerated at the Ohio Reformatory for Women after Cuyahoga County Common Pleas County Judge Shirley Strickland Saffold revoked her bond on May 9 and ordered her to begin serving her eight year prison term for intimidating a judge.
Baumgartner had been free on a $50,000 bond pending the outcome of her appeal of the 2005 conviction for allegedly intimidating and retaliating against retired visiting judge Richard Markus as well as her former business partner, Bryan DuBois.
Saffold had imposed conditions on the bond that included that she could not file any legal actions in any court without Saffold’s approval.
Courts which have addressed the issue of “unconstitutional conditions” in the context of bail conditions have been careful to ensure that government does not use unconstitutional bail conditions to chill First Amendment rights, including speech, press, assembly and petitioning activities.
The motion seeking her release on bond was filed June 11.
Baumgartner was indicted on numerous felony counts of intimidation and retaliation as a result of sending non-threatening, but allegedly “materially false” e-mails to a judge and others and for filing civil suits containing allegedly “materially false” allegations. She was indicted on numerous felony counts of intimidation and retaliation in a second case for posting offensive web posts on a website about her co-defendant and his wife, Bryan and Mandy DuBois. One of the postings was allegedly materially false and the other was a parody of rap lyrics by a nationally known rap artist which, although not directed at any one in particular, was alleged to constitute a “threat of harm.”
fter pleading no contest to 18 felony counts she was found guilty of 15 felony counts, including four felonies for the altered rap lyrics post alone. On Dec. 18, 2007, Ms. Baumgartner was sentenced to a total of eight years in the Ohio Reformatory for Women. She appealed.
On Jan. 29, after briefing had been completed by both sides, the Court Of Appeals determined that it lacked jurisdiction to proceed because Saffold had failed to sentence Baumgartner on six counts of which it had entered findings of guilt in its journal entries. The appeals court therefore remanded the case back to the trial court but did not dismiss the appeal.
On remand, Saffold, without Mrs. Baumgartner being present, sentenced her to additional time and sentenced her on two counts of which she had specifically been found “not guilty” during the change of plea proceedings.
As a part of Baumgartner’s negotiated plea, she was to be granted an appeal bond in the amount of between $25,000 and $50,000. No special bail conditions were part of the negotiated plea agreement and she did not agree to certain conditions of the bond which the court subsequently imposed on her. Specifically, the record reflects that no bond condition prohibiting Baumgartner from exercising her First Amendment right to petition for redress of grievance was incorporated within the bond agreement which the court executed on Dec. 22, 2006, and which Mrs. Baumgartner signed on Dec. 26, 2006.
Finucane writes that what occurred is that one of the alleged victims in the case, Retired Visiting Judge Markus, suggested at the sentencing hearing, that the trial court impose bond conditions restricting Mrs. Baumgartner’s speech and petitioning activities. Saffold then issued an order entered Dec. 21, 2006, setting appeal bond conditions that Baumgartner “shall file no lawsuit in any court against any public official without the express written permission of Judge Shirley Strickland Saffold;” and, that Mrs. Baumgartner “shall make no public, derogatory, factual statement about any public official without reasonable cause to believe it is true.”
Saffold’s order further defined a “public statement” as “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.” The order defined a “factual statement” as one which ”asserts specific provable conduct and is not a mere expression of personal opinion.”
During the course of the pending appeal, prosecutor Daniel Kasaris and the Cuyahoga County prosecutor’s office moved for Saffold to revoke Baumgartner’s bond on three separate occasions. The first such instance was on Jan. 24, 2007. The hearing on that motion was held on April 30, 2007.
Saffold, being in the middle of an unrelated trial, stopped the trial to hear the state’s argument that Baumgartner had written an inmate grievance at the Ottawa County jail in which she complained that she had received a death threat from an employee of a contractor with the facility. Since this grievance violated none of the conditions of her bond, the trial court overruled the motion in an entry journalized on May 4, 2007.
Then on the afternoon of April 30, 2008, Kasaris filed another such motion which lacked a certificate of service, and the court set a revocation hearing for the morning of the May 5. Baumgartner was never served with this motion. The basis for the motion to revoke on this occasion was that Baumgartner had applied with Judge Markus, as she was required to do as a vexatious litigator, to file a legal malpractice suit against two of her former attorneys.
She indicated in her proposed complaint that she had a residence in Florida when her bond conditions did not permit her to leave the State of Ohio. In fact, she resides in Ohio and although she also has some property in Florida, she had never left the State without permission of the trial court, nor did the State allege that she had. Thus, this motion to revoke was also denied in an entry dated May 12.
Finally, just two days after Saffold denied the second motion to revoke Baumgartner’s bond, Kasaris filed a third motion to revoke her bond on May 7. The State’s motion contained a certificate of service; however there was no date or method of service specified in the certificate. Saffold set the hearing a mere two days after that motion was filed, Baumgartner not having been yet been served with a copy of it, on May 9.
The basis for the third motion was that Baumgartner had filed a federal lawsuit seeking injunctive and declaratory relief against the Ohio Pharmacy Board and several state public officials on April 7, although she had not attempted to serve any of the defendants. On May 8, the day prior to her hearing, she voluntarily dismissed the lawsuit.
Kasaris alleged that because she had not first sought the trial court’s approval to file the suit, she had violated her bond conditions. No evidentiary hearing was held in order to determine the truth or falsity of any of the allegations contained within the suit. Based solely upon Baumgartner’s act of filing a lawsuit in a federal court which was voluntarily dismissed before it had been served on anyone, Saffold granted Kasaris’ motion to revoke on the same day of the hearing, May 9, and Baumgartner remains incarcerated.
Finucane argues that in general, cases throughout the federal courts hold that once a state has made provision for bond pending appeal, the arbitrary denial of such bond violates the Fourteenth Amendment of the United States Constitution.
The courts have held that “[t]he right to petition one’s government for the redress of grievances is enshrined within the First Amendment to the United States Constitution,” and that “ability to seek redress in the courts is a fundamental right, guaranteed by the due process provision of the Fourteenth Amendment to the United States Constitution.
The doctrine of unconstitutional conditions prohibits a governmental entity from forcing a person to exchange a constitutional right for another right or privilege, holding that if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.
“The doctrine of unconstitutional conditions prohibits terminating benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe”, the federal court held in Bourgeois v. Peters (2004).
Courts which have addressed the issue of “unconstitutional conditions” in the context of bail conditions have been careful to ensure that government does not use unconstitutional bail conditions to chill First Amendment rights, including speech, press, assembly and petitioning activities. In. Leary v. United States, the federal court held that “If the appellant’s eligibility to be enlarged on bail under the Eighth Amendment may be lost because he exercises his First Amendment right to freedom of speech and to freedom of the press, then [the law at issue] imposes an unconstitutional condition.
Federal case law cited by Ms. Finucane points out the First Amendment, to the fullest extent, protects all citizens and that numerous cases have firmly established “that the Constitution, and notably the First Amendment, reaches inside prison walls.”
Because the condition of Baumgartner’s bond at issue, which impinges upon her First Amendment right to petition for redress or grievances, could not have been curtailed as extensively as it was in her bond condition, had she been incarcerated, it is unconstitutional to institute it as a condition for remaining at large.
It’s unknown when the court will rule on the motion. 6-29-08
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Category: Constitution, Courts, Crime, First Amendment, Ohio
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