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PORT CLINTON, OHIO---Rent-A-Judge Richard Markus, the Ottawa County Common Pleas Court and prosecutor Mark Mulligan have themselves in a Catch-22.
Just when you thought the case of former Oak Harbor attorney Elsebeth Baumgartner couldn’t get any more bizarre, the court has disregarded an automatic stay imposed by federal law and proceeded to trial in the 32 charges of contempt brought against Baumgartner by retired visiting judge Markus.
If the court claims that the contempt charges brought by Markus against Baumgartner are criminal, then presiding Judge David Faulkner and Mulligan have violated Baumgartner’s Sixth Amendment right to trial by jury, right to counsel and other constitutional guarantees.
If they claim it’s a civil contempt proceeding which doesn’t entitle her to a trial by jury or legal counsel, then they’ve violated a stay granted by operation of law by her filing of a Chapter 13 bankruptcy action.
On Friday, Baumgartner, disbarred for filing complaints against public officials, filed a pro se Chapter 13 proceeding in U.S. Bankruptcy Court in Northern District of Ohio at Toledo. By doing so, pursuant to the U.S. Code, a powerful and far reaching automatic stay in the contempt proceedings against her arises by operation of law on all efforts against a debtor.
Such a stay is rudimentary as even under Findlaw, the definition of an automatic stay is that which comes into operation upon the filing of a bankruptcy petition in accordance with bankruptcy law that prevents creditors from attempting to collect from the debtor for debts incurred before the filing.
Markus spent a good share of the day Monday on the witness stand reading his complaints against Baumgartner which include that she called him a private judge, (which he is as the president as Private Judicial Services Inc.) that she criticized his rulings in cases, charged that he had engaged in case fixing and that she had called him corrupt.
Markus bristled when discussing the visiting judge system which Baumgartner has long challenged as not having been legally enacted. Markus revealed from the stand Monday that he himself had written the guidelines for the program. However, they were never legally enacted legislatively. Markus also appears to testy concerning the issue of an oath of office which he has not taken or filed which allegedly violates the provisions of both state law and the Ohio Constitution which requires all public officers take and file an oath of office prior to assuming the duties of that office.
The trial has been adjourned until Wednesday due to Markus’ unavailability Tuesday.
One of the ruling cases in the matter is the 1987 case of In re Albert R. Dervaes from the U.S. Bankruptcy Court in the Southern District of Florida which holds that enforcement of a contempt order is stayed under the automatic stay provision of Bankruptcy Code.
A criminal contempt would be exempted from the automatic stay but by denying Baumgartner her rights guaranteed by the Sixth Amendment and assigning a civil docket number to it, the court has, by both statutory and case law, violated the Bankruptcy Code and automatic stay that is in place.
Is the contempt criminal or civil?
A criminal contempt would be the violation of a court order such as a protective order issued in domestic violence cases. A civil contempt would be levied against a person who refused to comply with the court’s order such as the recent case of New York Times reporter Judith Miller refusing to identify a source for an article.
A "criminal" action or proceeding is one brought to enforce criminal law. Criminal law is (a) a legislative enactment (b) applicable to at least a class (c) prohibiting specified conduct and (d) providing punishment by fine payable to, or imprisonment by, the state (e) upon the state's complaint.
A civil contempt order on the other hand, is a judicial act to enforce a judicial directive or preserve the court's dignity. Typically the state is not a party in a contempt proceeding. It is applicable only to specified individuals. It involves no legislative determination. It resembles a criminal action only to the extent it employs the sanction of either a fine or imprisonment. It is a civil procedure, not a criminal action or proceeding.
Thus with Markus publicly stating that the allegations that Baumgartner had made against attorneys and judges, including himself, disrespected the court, the charges he has filed against her are civil in nature and thus the stay is automatically in place with her filing of the bankruptcy action on Friday. Markus has stated that Baumgartner’s expression of personal opinion “tended to embarrass, impede and obstruct the court in the performance of its functions”-----a allegation constituting civil, not criminal, contempt and which would bar the contempt trial from proceeding.
The contempt proceedings arise from 32 unsworn contempt citations filed against Baumgartner by Markus on Dec. 10, 2004, Markus cited 32 references from court filings that Baumgartner had filed during the case that he says constitute contempt including accusations of case fixing and corruption against Markus, Smith, Ohio Supreme Court Chief Justice Thomas Moyer and other Ohio officials.
However, in that Markus is claiming that the alleged contempt is a “direct contempt”, court rules require that he take immediate action in a situation where he claims contempt has occurred. Instead, Markus took no action to charge Baumgartner until after the conclusion of the civil case he was adjudicating against her.
The contempt charges were levied against Baumgartner by Markus in December 2004 during a civil trial that Markus was adjudicating in which former Benton-Carroll-Salem school board member Kellen Smith was suing Baumgartner for libel and defamation. Markus awarded Smith $175,000, saying that Baumgartner had repeatedly libeled Smith in letters about him written to various public officials after Smith joined the school board.
http://www.northcountrygazette.org/articles/031806JudgesTrumped.html
3-20-06
© 2006 North
Country Gazette
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