Originally Posted - August 31, 2006

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The Ohio Constitution says that "All courts shall be open, and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay". That means that EVERY person has access to our courts.

Even judicial whistleblower and activist Elsebeth Baumgartner.

The Baumgartner case reached the Ohio Supreme Court Thursday with Baumgartner filing to appeal the Sixth District, County Court of Appeals' refusal to allow her the constitutionally guaranteed right of first appeal of the contempt conviction imposed on her on June 1 by retired visiting judge Richard Knepper.

The filing could result in a landmark ruling concerning the jurisdiction of retired visiting judges in criminal matters and if denied by Ohio Supreme Court and Chief Justice Thomas Moyer, could be on a direct line to the U.S. Supreme Court with a question if Ohio courts and in particular a retired visiting judge, has jurisdiction to usurp a defendant's constitutional guarantees in criminal matters if they have been deemed a vexatious litigator in civil actions.

According to Ohio law, private judges are statutorily limited to hearing non-jury trials outside of county courthouses. Retired judges like Knepper must first by law register with clerks of the court to become private judges and then get referrals for civil cases.

Retired visiting judges by law are precluded from adjudicating criminal matters.

In July, as the result of a writ of prohibition filed by Cuyahoga County Common Pleas Court Judge Nancy Russo, the Ohio Supreme Court ruled that when litigants in a civil action agree to have their case heard by a private judge, if the matter goes to a trial it must be heard by the private judge and not by a jury. In addition, the Court in ruled that a court where a privately judged action is pending is not required to provide facilities, equipment or personnel but may at its discretion do so if the parties agree to pay the costs.
http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-3459.pdf

Russo had objected to non-elected jurists trying cases at taxpayer's expense while financially benefiting.

Knepper found Baumgartner in contempt for being "obstreperous" and sentenced her to 45 days in Erie County Jail when she appeared before him June 1 for trial on charges of grand larceny for allegedly "stealing" her corporate vehicle that she had financed, although there was no complainant. She was also charged with felony fleeing and several misdemeanor charges.

Knepper had refused to allow Baumgartner legal counsel, claiming that she had effected a waiver. Although she timely filed a notice of appeal challenging Knepper's denial of counsel and incarceration, the Sixth District refused to allow her to file her constitutionally guaranteed appeal, saying that she had been deemed a "vexatious litigator" by retired visiting judge Richard Markus, 76.

Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions. The statute is applicable only to civil actions and the state statute cannot usurp Ohio's state Constitution or the federal Constitution which guarantees the right to appeal in a criminal matter.

Ohio statutes provide that the judgment and orders of a court or officer made in cases of criminal contempt may be reviewed on appeal. Appeal proceedings won't suspend execution of the order or judgment until the person in contempt files a bond in the court rendering the judgment or in the court or before the officer making the order. When Baumgartner sought bond, the District Court sat on her request until she was released from jail, then denied it saying that she couldn't file because of the vexatious litigator finding.

Although Knepper had recused himself from the Baumgartner case on Aug. 18, when Baumgartner was subpoenaed to appear in another case before Knepper on Aug. 21, Knepper---by his own admission, "lost it" and revoked Baumgartner's bond in the grand theft case despite having already disqualified himself from the case and without Daniel Kasaris, special prosecutor, being present or Baumgartner being represented by legal counsel.

Knepper, playing complainant, prosecutor, judge and jury, decreed that Baumgartner was guilty of authorized practice of law-----but without any formal complaint having been brought against Baumgartner. In Ohio, the Ohio Supreme Court must first make a civil determination that a person has engaged in unauthorized practice of law before the matter can proceed criminally. Such had not occurred in the allegation against Baumgartner.

Additionally, in that Baumgartner had been summoned to the court in a case unrelated to hers by subpoena but was never called to testify in that case, she says the subpoena gives her immunity.

In her brief to the Supreme Court, compiled although denied access to a law library, Baumgartner memorandum in support of jurisdiction states that the case is "a case of first impression concerning appellate rights of criminal convictions by vexatious litigators. Accordingly, this case implicates First Amendment guarantees freedom of speech and press to criticize the judicial branchy and the right to petition courts for redress of grievances.

"Further because appellant was remanded to custody for 45 days in a closed felony criminal hearing during which she was forced to defend herself and denied bond by a retired visiting judge, this case implicates the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments as well as being a case of first impression construing the jurisdiction of retired visiting judges in Ohio.

Baumgartner relates the facts of the case as follows:

"On June 2, 2005 Appellant Elsebeth Baumgartner publisher and investigative journalist for Erie Voices, a website focused on public corruption in Erie, Ottawa, Lucas, and Cuyahoga Counties was indicted by the Erie County Grand Jury for third degree felony fleeing and eluding, and grand theft auto of her business associate's company provided vehicle.

"On Feb. 1, 2006 Special Prosecutor Dan Kasaris obtained a search warrant on Appellant's home in Ottawa County, Ohio and seized Appellant's computers containing attorney client protected information dating back over five years. To date Appellant's confidential records have not been returned. Immediately after the raid, Appellant's name started appearing on the internet linked to several hundred pornography sites. In April and May 2006 Appellant discovered death threats on the internet which appeared linked to the webserver for Cuyahoga County, used by Special Prosecutor Kasaris. On May 24, Appellant filed a Motion to Suppress all evidence due an arrest without probable cause on private property.

"On May 31, Appellant received an email based virus which could only come from Special Prosecutor Kasaris and her remaining lap top computer's hard drive was destroyed.

"On June 1, Appellant appeared for jury trial in Erie County Common Pleas Court, Retired Visiting Judge Richard Knepper presiding. Appellant found Judge Knepper and Special Prosecutor Kasaris engaged in extensive ex-parte discussions in an unassigned courtroom. Judge Knepper invited Appellant in and had the court room door locked so the press and Appellant's many supporters were barred from the proceedings.

"Appellant sought a hearing on her Motion to Suppress and was denied. She then argued that harassment including internet based attacks by Special Prosecutor Kasaris obstructed her ability to defend herself and repeatedly invoked her right to counsel.

"Finally Appellant raised on the record that she was a Christian civil rights advocate and the record of sexual and economic exploitation of women, children, and minorities by public officials in Erie County. She surrendered and urged the court to go forward with trial. The court responded by openly mocking Appellant's faith and found Appellant in direct criminal contempt of court. She was sentenced to 45 days and immediately remanded.

"While incarcerated Appellant was denied access to the courts and the right to counsel. Local bar members refused her calls.

"Eventually she was able to dictate over the phone her Notice of Appeal and Motion for Bond which were filed on or about June 22.

"Just prior to the Fourth of July 2006 holiday weekend, Appellant learned that the Sixth District Court was considering her application for Bond after denial by Retired Visiting Judge Knepper.

"On July 4, Appellant read the Honorable Justice Pfeifer's essay in a local newspaper and noted ironically that she was incarcerated for criticizing the judiciary.

"On July 15, after serving her complete sentence and not hearing from the Appellate Court, Appellant was released.

"On July 17, Appellant appeared for a competency hearing. Judge Knepper after ordering Appellant remanded on June 1, had sua sponte ordered a competency evaluation due Appellant's "paranoid rantings."

"The Court Diagnostic Center found no mental illness and opined that there was no basis for the referral. Indeed the examining doctor stated that if one accepts Appellant's original premise to wit: that case outcomes are pre-determined in some cases via manipulation of judicial and or special prosecutor appointments, then the five years history of this Appellant makes sense as retaliation for whistle-blowing on judicial corruption.

"At the competency hearing, Appellant noted on the record that the Sixth District Court of Appeals, the same bench on which Retired Visiting Judge Knepper served, coincidently dismissed Appellant's appeal of her contemp conviction just that morning. The dismissal prevented any appeal on the merits of her direct contempt conviction since the time of appeal had elapsed. The Court of Appeals had refused to rule on bond for over three weeks discovering only after the fact that R.C. 2323.52 required a motion for leave to file a criminal appeal.

"Appellant again requested Judge Knepper recuse himself in view of his lack of bond, and oath of office; prior denials of Appellant's constitutional rights to free speech, counsel and due process as well as his appearance of financial interest in the outcome of the case due his acceptance of recommendations for his private mediation firm from law firms representing Erie County Prosecutor Kevin Baxter's interests. Judge Knepper declined to recuse himself and set a new trial date of Sept. 5 without addressing Appellant's motion to dismiss due violation of speedy trial rights and again frefusing to set a hearing on the still pending motion to suppress due a warrant issued without an affidavit in support or probable cause.

"On Aug. 17, Appellant received in the mail, notice of a hearing set for Aug. 18, on Aug. 11, by unassigned Judge Tygh Tone. Judge Tone had set a hearing on a motion to revoke Defendant's bond for appearing at a creditor's meeting and for engaging in the unauthorized practice of law. Importantly the motion seeking to revoke bond was not filed with the court until Aug.17, indicating that Judges Tone, Knepper and Special Prosecutor Kasaris had engaged in ex parte discussions on Aug. 11, in setting the hearing date on a non-filed and un-served motion.

"On Aug. 18, Appellant filed notice to the court of referral of allegations of corrupt activity in the court to the FBI by Sandusky Police Captain Charlie Sams. Appeallant then appeared for hearing and argued she had not received notice and wished to respond to the state's motion to revoke bond. After hearing from the state Judge Knepper denied the motion to revoke bond and recused himself from the case, claiming he was too busy.

"On Aug. 21, Appellant appeared pursuant to subpoena at a hearing in State v. Elizabeth Ohlemacher Judge Knepper presiding. Appellant was asked to leave the courtroom and waited outside while Beth Leser, mother to Elizabeth Ohlemacher testified that Appellant helped her daughter file motions in her own defense due the incompetence of the public defender. When the proceedings finished without calling Appellant, she was advised that Judge Knepper "lost it" on the record and wanted Appellant arrested. When Appellant tried to leave the courthouse she was arrested on a bench warrant signed by Judge Knepper in the case he had recused himself. Judge Knepper revoked Defendant's bond finding her guilty without charge of the misdemeanor crime of unauthorized practice of law.

"Appellant was incarcerated in the Erie County Jail and has been held without charge, bond or hearing since Aug. 21. All attempts to obtain a bond hearing have been denied by Administrative Judge Roger Binnette who refuses to assign a judge or magistrate to the case.

"Appellant filed multiple grievances seeking access to a law library and computer in order to timely file and prepare and was denied. As a result, Appellant's legal argument is minimal and is based on constitutional principles and statues as remembered by Appellant".

Baumgartner argues that an appellate court errs by not allowing an appeal of a direct contempt conviction.

"This is a case of first impression concerning statutory interpretation of RC 2323.52 as a prior restraint on access to file appeals of criminal convictions as a matter of right. Because the underlying conviction for direct criminal contempt of court arose from statements made in a courtroom, the First Amendment Rights of Appellant were violated twice, at the trial court and again by the Court of Appeals. The Fourth and Eighth Amendments are implicated because Appellant was incarcerated and held without bond for 45 days.

"Direct criminal contempt by its summary nature violates Fifth Amendment Rights to due process. In the instant case Sixth Amendment guarantees to counsel, neutral judge, and open criminal proceedings were also abridged.

"However these important constitutional issues were never reviewed on the merits because the Appellate Court chose to interpret the vexatious litigation statute intended to regulate civil proceedings as applying to criminal proceedings.

"Such an interpretation directly violates constitutional guarantees to access the court and appeal criminal convictions as a matter or right.

She also argues that an appellate court errs by not granting a stay on execution of sentence or bond for direct contempt of court due to criticism of the trial court judge and special prosecutor in a closed hearing in a felony case at which appellant was denied counsel.

"This case raises for the first time the jurisdiction of retired visiting judges in criminal cases and whether constitutional and statutory requirements apply to retired visiting judges.

"Appellant argued at the trial court level that the Ohio Legislature never granted to retired visiting judges the authority to hear criminal cases because the office is not granted jurisdiction in CRIM R 2 (E). Further the Ohio Constitution and Ohio Revised Code requires all judges to file an oath of office and bond as well as the face that no judge may be elected or appointed to any judicial office over 70 years of age. To permit retired visiting judges to serve without bond, oath or past the age of 70 years is to grant them favored status in violation of equal protection under the Fourteenth Amendment.

"Moreover the retired visiting judge system by its nature creates an appearance of judge shopping and financial interest in cases because payment is linked to length of a case and judges are hand selected often in violation of the Rules of Superintendence for the Courts which mandate random assignment.

"In the instant case Appellant argued that retired visiting judge Richard Knepper was refusing to rule on motions to suppress and to dismiss because the politically motivated prosecution would cease if Appellant's motions were ruled upon.

"Appellant vigorously argued her positions in a closed hearing and when she finally conceded "let's go to trial because the state can't prove the essential element of a valid warrant," Judge Knepper ordered her arrested due "obstreperous activity." He then declared Appellant to be "paranoid" without any medical evidence (practicing medicine without a license - a 3rd degree felony) and ordered a fourth competency evaluation at state expense. For the fourth time that evaluation revealed no mental illness.

"While incarcerated, Appellant was denied access to the court, law library and counsel. Judge Knepper denied application for bond on a direct criminal contempt conviction which runs counter to 60 years of United States Supreme Court precedent which prohibits using contempt powers to punish speech critical the judiciary. (See Bridges v. California, Pennkamp et al v. Florida, Craig v. Harney cites not available)

"Indeed Appellant was incarcerated for 45 days, one day for each minute of the closed pre-trial hearing because she kept jurors waiting. After she was arrested Judge Knepper granted state motions to quash subpoenas for witnesses in her defense.

"The Court of Appeals had three weeks to consider Appellant's application for bond pending appeal, but chose instead to dismiss the appeal on July 17, two days after the Appellant was released from her 45 days incarceration.

"This wasn't the first time that the Sixth District Court of Appeals failed to act on application for bond on a misdemeanor conviction. In 2003, Appellant was incarcerated for 156 days on misdemeanor convictions for falsification due her reports of Erie County Prosecutor Kevin Baxter's alleged corrupt activity. Judge Knepper then served as the presiding judge on Appellant's appeal and repeatedly denied bond while granting bond to white male attorney Edwin Bersmark for far more serious felony crimes. After Appellant's release in September 2003 and subsequent disbarment for reporting misconduct by public servants, Judge Knepper admitted his bias against Appellant and recused himself from Appellant's appeals in October 2003.

"Almost three years later after entering proof on the record that white male officers of the court are in fact protecting sex crimes against women and children and or engaged in corrupt activity such as drug abuse just as Appellant reported in 2001-2003, Judge Knepper incarcerated and held Appellate without bond not once but twice while the Sixth Circuit Court of Appeals declines to perform it's duty to review trial court proceedings.

Baumgartner has argued that the Supreme Court should elect to hear the case because it is a case of first impression concerning the vexatious litigator statute and its application to criminal appeals; it is a case of first impression concerning jurisdiction of retired visiting judges and their authority to adjudicate criminal cases; the case involves the fundamental right of citizens to criticize the judicial branch without fear of retaliation and to access the courts to petition for redress of grievances concerning allegedly corrupt court officers and fundamental constitutional rights guaranteed by the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments appear to have been violated in this case and Appellant was denied redress.

It is unknown when there could be a decision. 8-31-06

© 2006 North Country Gazette