UPDATED AT 8:15 AM
Although the author of this blog is an attorney, the blog is written (as are all SCPR blogs) from the perspective of yours truly being a blogger who comments on politics and government (mostly Stark County-based) from a journalistic perspective and not as a lawyer.
THE IMPORTANCE OF THE RULE OF LAW TO AMERICAN DEMOCRACY
On a scale of 1 to 10 with 10 being the highest, "the rule of law" has to be the highest order in a democracy.
Dr. Mark Cooray has written eloquently on this topic (LINK).
In part, he writes:
The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352
"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".
APPLYING THE RULE OF LAW IN STARK COUNTY
The SCPR believes that such is what local attorney and civic activist Craig T. Conley had in mind when he decided to challenge Stark County Court of Common Pleas judge Frank Forchione on part of his sentencing order of Scott D. Studer of Jackson Township.
Originally, Judge Frank Forchione had, as part of his sentencing of Studer, ordered him to pay $5,000 for the benefit of the Sandy Hook Elementary School (Newtown, CT) shooting victims.
Here is a LINK to a prior SCPR blog which provides background and more detail on the Studer matter.
Conley originally attempted to right what he considered to be a Forchione transgression of "the rule of law" in a communication to Judge Forchione's legal counsel (Stark Co. prosecutor John Ferrero), to wit:
January 23, 2013BACKGROUND OF THE ETHICS COMPLAINT
VIA FACSIMILE (3 PAGES TO 330/451-7965) ONLY
Hon. John D. Ferrero
Stark County Prosecuting Attorney
STARK COUNTY PROSECUTORS OFFICE
P.O. Box 20049
Canton, Ohio 44701-0049
Re: State of Ohio v. Scott D. Studer
Stark County Common Pleas Court Case No. 2012 CR 1790
Dear Mr. Ferrero:
As you are aware, in the above-referenced high-profile criminal action, Judge Forchione (with your formal approval) ordered Mr. Studer to “pay a fine in the amount of Five thousand dollars ($5000.00) . . . to be forwarded to the victims of Newtown, Connecticut tragedy”. (Reference the Court’s December 19, 2012 Journal Entry Sentencing Form and December 31, 2012 Judgment Entry/imposition of sentence.)
As you are also aware, on January 2, 2013, under cover of his Court-stationery letter of that same date, Judge Forchione forwarded Mr. Studer’s $5,000.00 check in payment of that fine to the Sandy Hook School Support Fund.(Reference the Court’s January 2, 2013 Judgement Entry, to which Judge Forchione attached his aforesaid cover letter and a copy of Mr. Studer’s $5,000.00 check.)
As you are also aware, Judge Forchione thereafter promptly informed the media of the Fund’s receipt of that check. (See, e.g., a news article entitled “Studer’s check for $5,000 sent to Sand Hook support fund” which was electronically published in The Repository on January 8, 2013.)
Grandstanding issues aside, as I reasonably presume is the case
Hon. John D. Ferrero,
Stark County Prosecuting Attorney
January 23, 2013
Page 2 of 3
with you, I am unaware of any Ohio Revised Code Section authorizing Judge Forchione’s tender of Mr. Studer’s $5,000.00 fine to any entity other than that specified in O.R.C. 2949.11 (effective May 6, 1986 and not since amended), which Code Section provides, in pertinent part, that “. . . an officer who collects a fine shall pay it into the treasury of the county in which such fine was assessed, within twenty days after receipt of the fine, to the credit of the county general fund”. (emphasis supplied)
Indeed, in Ohio v. Cooper (2001), 144 Ohio App. 3d 316, the Eighth District Court of Appeals, citing (at 320 and 321) to that same Code Section, appropriately held “This statute mandates that all fines be paid into the county treasury; a trial court therefore does not have the statutory authority to direct payment of a fine to a charitable organization”. (emphasis supplied)
Along those same lines, in Lane v. Phillabaum (12th Dist. 2008), 182 Ohio App. 3d 145, 2008-Ohio-2502, that Court, citing to that same Code Section, held (at ¶ 18) that “. . . it was improper for the court to order the students to make donations to a particular charity or nonprofit organization . . . rather than paying a fine into the county treasury”. (See also State v. Short (12th Dist. 1992), 1992 WL 158413, for that same basic proposition of law.)
Accordingly, on behalf of the taxpayers of Stark County, and more particularly on behalf of my client, Thomas M. Marcelli (a County resident, taxpayer and electorate), I request you immediately institute a civil action against Judge Forchione for the recovery of and payment into the Stark County Treasury of Mr. Studer’s $5,000.00 fine, plus interest from January 2, 2012 to the date of such recovery and payment. (Reference O.R.C. 309.12 and 309.13.)
In that regard, because you, as the Stark County Prosecuting Attorney, signed your approval of Judge Forchione’s December 31, 2012 Judgment Entry (and/or because of the effect of O.R.C 309.09(A)), I respectfully suggest you should forthwith recuse yourself from any and all future involvement in this matter and
Hon. John D. Ferrero,
Stark County Prosecuting Attorney
January 23, 2013
Page 3 of 3
should request the appointment of a special (out-of-County) prosecutor.
Please promptly advise. Thank you.
Craig T. Conley
cc: Thomas M. Marcelli
Stark County Auditor
Stark County Board of Commissioners
Stark County Treasurer
Well, it was the Conley "grandstanding" assessment which caught the attention of the "anonymous" complainant and generated his initiative to Ohio's Disciplinary Counsel after Conley's comment hit the media.
An interesting factor here is that the "anonymous" complaint was originally sent to the Ohio Supreme Court Disciplinary Counsel (OSC-DC) only to be redirected to the office to the Legal Ethics and Professional Conduct Committee of the Ohio State Bar Association.
Conley tells The Report because the OSC-DC said that there was a "conflict in interest" in the OSC-DC considering the complaint.
Conley will not comment or speculate as to the specifics of why there would be a conflict in interest between the "anonymous" complainant and the OSC-DC.
But the Stark County Political Report will.
The Report thinks that the "anonymous" complainant may be either a very prominent Stark County attorney or judicial official who is well known to the OSC-DC.
It only stands to reason that if such is the case, that the enforcer of ethics would want to be above reproach itself.
The "anonymous" complainant (in filing the complaint on January 28, 2013) referred to a Matt Rink Repository piece (January 23, 2013) in which the following Conley comment is reported by Rink:
"This was just grandstanding," Conley said. "This is Jeeze, 'I can get my name in the paper.' The courtroom is not a place for a popularity contest."THE ATTEMPT TO AVOID THE FILING OF A LAWSUIT
Prosecutor Ferrero apparently was not inclined to (probably because of what the SCPR believes to be "bad blood" between the two growing out of the Zeigler case), or was unable to convince Judge Forchione to alter the order so as to be in compliance with "the rule of law:" (that is to say, ORC 2949.11) within the time frame set by Conley.
The SCPR believes it was the former rather than the latter. Accordingly, the SCPR posits that Ferrero bears some responsibility for Conley becoming frustrated in his quest to get an obvious error fixed.
Conley and his client being the "rule of law" devotees they are, could not abide the delay in getting the Studer fine order fixed to what it eventually should have been from the beginning, to wit:
As originally issued and in apparent violation of ORC 2949.11:
As corrected by Judge Forchione on February 14th:
Conley says the change in the order is in and of itself an admission by Judge Forchione that the first order was wrong despite the denial by the judge to local media he had done anything wrong.
Clerk of Courts Nancy Reinbold told the SCPR yesterday that the correction/amendment is sufficient to cause her to pay the returned $5,000 (see details of the return below) to the Stark County treasury for deposit in the county general fund.
Had Ferrero taken Conley's letter at face value and acted to counsel Judge Forchione that the request be honored in quick order, then the declaratory judgement action likely would not have been filed for the simple reason that it was ultimately voluntarily dismissed last Friday: the lack of a judiciable issue.
CONLEY GOING PUBLIC
An argument can be made that Conley was too quick in going to the media with his "grandstanding" charge.
He tells the SCPR that he was relying on Code of Professional Conduct Code Section 8.2 in his zeal to correct an obvious (to him) problem, to wit:
Otherwise, doesn't he give credence to a charge that he was grandstanding himself?
THE RETURN OF THE $5,000 STUDER FINE FROM THE SANDY HOOK SCHOOL SUPPORT FUND
Eventually, Judge Forchione retrieved the money from the Sandy Hook School Support Fund (which cost the fund's agent [Western New England United Way] $25 in wire transmittal fees).
Undoubtedly, the Marcilli initiated lawsuit was an instrumental factor, no?
CONLEY NAMED A GRANDSTANDER IN HIS OWN RIGHT
Of course, Conley's pursuit of the "rule of law" brought lots of media attention including the SCPR which in an ironic sense made Conley vulnerable to a charge that he was himself grandstanding.
Such allegations were made by supporters of Judge Forchione's original $5,000 Studer fine to be paid for the benefit of Sandy Hook shooting victims.
Conley denies that he was grandstanding. He stands on his insistence that his going public was to fulfill his deep commitment to the rule of law.
CONLEY HAVING A PERSONAL MOTIVATION QUESTION
Moreover, a least one of them ("warmsunshine" on The Rep's online comment section) having familiarity with the rocky interpersonal relationship between the judge and Conley (Conley filed an "affidavit of disqualification" on a case - which Forchione recused himself some nine months after winning on the affidavit issue) implied that the only reason that Conley was interested in taking on client Marcelli's cause (even suggesting that Conley had client-shopped) was because of recent acrimony between Conley and Forchione.
Conley has some strong words for "anonymous" complainant:
- That he views the complaint as an attempt to intimidate and muzzle and that such simply is not going to happen
- He did nothing wrong in making the comments complained of by anonymous and that if attorney can't make truthful comments, such is not good for the American system of justice,
- Every attorney has an affirmative duty to expose problems in the judiciary for the betterment of the judiciary and the rule of law,
- Cited a Supreme Court decision which held out that members of the judiciary have a greater duty to follow the law than the members of the bar,
Lessons to be learned can probably be reduced to one basic lesson: communication, communication and more communication.
And the SCPR believes that Prosecutor John Ferrero was the key.
As far as the SCPR knows, there was very little communication between Conley as legal counsel for Mr. Marcelli and Ferrero as the lawyer for Judge Forchione.
During what Conley termed as being Zeiglergate, it was very obvious that Ferrero felt put upon by Conley in his seizing the initiative to push Ferrero to get moving to secure Zeigler assets in the event the county were to secure a judgment against Zeigler for the loss funds that Vince Frustaci stole from the county treasury.
Zeigler was not implicated in the theft, but the State of Ohio Auditor issued findings that Zeigler's treasury policies, practices, procedures and inadequate, in some instances, physical facilities were deficient. Moreover, Ohio statutory and case law makes a county treasurer strictly liable for loses that occur under a treasurer's watch for whatever reason it occurs.
Conley felt Ferrero was remiss in protecting the county's interests quickly enough and therefore got the jump on Ferrero by filing a taxpayer lawsuit on the part of guess who? You've got it: Tom Marcelli.
Hence giving birth to "bad blood" between the two of them which spilled out into the press.
The similarities between the Zeigler and Forchione matters are striking in terms of the Ferreo/Conley relationship.
Apparently, the "bad blood" lingers which is surprising between two lawyers.
It is common knowledge that lawyers battle one another for the interests of their clients/causes, but at the end of the day bury the hatchet and oft times go out and have a drink with one another.
Clients get disturbed by this phenomenon, but judges and lawyers think nothing of it.
Such is the case with many athletes and coaches (e.g. witness the Harbaugh brother against brother match up in the Super Bowl) who vie with one another but then often fraternize when the contest is over.
It is clear to the SCPR that Conley is going to continue to be Conley (i.e. a civic activist eternal and agitator). And, Ferrero is likely to continue to be Ferrero (i.e. in the opinion of the SCPR: oversensitive and just tad vindictive). Does anyone doubt that there will be future face offs between the two?
Because of the SCPR's incisive writing, Ferrero will not answer The Report's questions.
Can yours truly do without access to Ferrero? Of course.
The Report gets plenty of information about his operation of the prosecutor's office without exchanging one word with him. And the SCPR will continue to cover his performance in office whether he likes it or not.
A man who gets paid by Stark County taxpayers, doesn't think he has to be accountable?
He may not like, but there are quite a few Stark Countians who read the SCPR.
He obviously takes the SCPR's criticism as being personal.
The man is an elected public official.
If he can't stand the heat of being an officeholder, why does he keep running for office?
So the SCPR's suggestion to Ferrero is that he toughen up his hide, grow up a little in his governance style and temperament and leave his disagreements with the likes of Conley and the SCPR and others who differ with him in the realm of it all being in the confines of a day's work.
For if he doesn't, he is likely to experience parade of miscommunications that are not going produce good results for anybody including himself and most certainly the Stark County community at large.
Conley, on future civic activist issues, might want to try first picking up the telephone and talking to Ferrero before firing off a "I am putting you in a corner" type letter.
Ferrero should be willing to take such a phone call and seek to reach common ground through continuing dialogue in which the goals of each and their respective clients get met, at least in part.
DID ANYTHING GOOD COME OUT OF MARCELLI V. FORCHIONE?
The SCPR thinks so.
Judge Forchione showed himself to be a man of compassion. Those who know him well are convinced that he acted out of the highest of motives. Even Conley doesn't question that. He simply says that the judge doesn't have the authority to do what he did.
Moreover, he certainly has learned, in terms of his official duties that he cannot use his duty and power to sentence as a means to manifest his altruistic impulses.
It would be quite shocking if Judge Forchione were to repeat a Sandy Hook type order.
The Report does not believe he will. So if he has learned his lesson, this is a good thing.
Everybody makes a mistake in judgment from time to time.
John Ferrero should now realize that he needs to communicate (listen and converse reciprocally) with his colleagues at the bar (e.g. Conley) and with the media (e.g. the SCPR).
America is a check and balance society and as a public official being critiqued is part and parcel of being an official. Perhaps he is learning this reality. Let us all hope so.
Anonymous complainant certainly should understand that many people hold the cowardly with emphatic disdain and contempt.
While it is his right to play the role of the coward, it cannot be very fulfilling. Perhaps this experience will cause anonymous to rethink his cowardice. If anonymous is a person of conviction, then he should have the courage of his convictions.
If his identity becomes known via his own loose lips (the only way it can happen), his cowardice will likely outweigh any claimed devotion to principle.
Is cowardice what he wants to become known for?
Craig Conley has had a new learning experience on the cost of being a civic activist.
While he is confident that the "anonymous" complaint will fail, it has to be displeasing that a person who never been disciplined that he should be subjected to the process.
It is impressive that he has waived his privacy rights and is allowing the Stark County public look on as he defends his right (duty in his eyes) to pursue his devotion to the rule of law. In contrast to anonymous, a true demonstration of courage and public accountability.
He has been through a firestorm of criticism from some quarters. And he has shown himself and onlooking Stark Countians that he has the strength of character to stand firm.
The bottom line for all of we Stark Countians is that "the rule of law" has prevailed.
And Craig Conley was the moving force behind its realization.
For that all Stark Countians should be thankful.
To repeat: The rule of law is fundamental to the western democratic order.
The SCPR presents the entire (except for the introductory and closing sentences) Conley response to the Legal Ethics and Professional Conduct Committee of the Ohio State Bar Association.
Conley waived his right to privacy and pro-actively asked the ethics committee to make its proceedings public.