Thursday, January 9, 2014


Yesterday the Stark County Political Report wrote about an imminent interim Sheriff Tim Swanson filing of a 2nd quo warranto against Stark County Democratic Party Central Committee (SCDP-CC) sheriff appointee George T. Maier and of Swanson's plan to file suit against the Stark County commissioners to have his legal fees paid for his successful first Swanson v. Maier(1) quo warranto and for back wages.

(Note:  Rather than rewrite the history, the SCPR in the first part of this blog brings forward material written included in The Report's December 30th blog with the proviso that the "brought forward material" is supplement with new information, SCPR analysis and emphasis and appropriate modifications ).

Deserving of equal billing vis-a-vis the quo warranto fight is the civil suit filed by Stark County resident and taxpayer Thomas Marcelli (representing Stark County taxpayers, in general) versus Maier to recover compensation paid to Maier and expenditures made by him (primarily in re-branding the sheriff's office with his name) for the period - according to the Ohio Supreme Court (Swanson v. Maier, quo warranto, November 6, 2013) that he was not legally the sheriff of Stark County (February 12, 2013 through November 6, 2013).

Since Marcelli's original filing on November 27, 2013 (which was amended on December 13th):
  • (December 10th): Maier's attorney (Rosenberg of Roetzel & Andress) has filed a "Motion to Dismiss."
  • (December 19):  Which Marcelli via his attorney Craig Conley has rejoined (December 19th) with a "Motion to Strike" coupled with a "Motion to Disqualify" Maier's attorney (Rosenberg).
  • (December 26th):  Rosenberg has responded with pleadings entitled:
    • "Memorandum In Opposition to Motion to Disqualify (Memorandum)," and
    • "Motion for Sanctions (Sanctions)."
  • (January 6th):  Conley filed a Reply Memorandum [Rosenberg's 12/26 Memo/Disqualify] and Memorandum Contra [Rosenberg's 12/26 Memo/Sanctions].
  • (January 6th):  Rosenberg filed a Motion to Dismiss [Maricell's December 13th] Verified Amended Complaint and Memorandum in Opposition to Motion to Strike.
  • (January 8th): Conley filed a Supplemental Memorandum to Rosenberg's January 6th filing.
Do you have all those dates and filing straight folks?

Is there any doubt that Marcelli v. Maier  is a true Stark County World Series of Legal Fighting?

On and on this legal merry-go-round goes and where it will stop nobody knows.

The SCPR sees the civil arena aspect of the fight as a veritable "David v. Goliath-esque" legal confrontation that seems sure to leave the defeated legal gladiator much worse off for having waged the fight.

To understand where the progression of the Marcelli (Conley)/Maier (Rosenberg) legal fight stands, the reader of this blog should refresh him/herself on this "civil?" battle by clicking on the links provided by The Report of each cited aspect of legal pleadings filed.

In today's blog [then December 30th], the SCPR reviews Rosenberg's "Memorandum In Opposition To Motion to Disqualify Counsel" and his "Motion for Sanctions; 19 pages in length.

As in his motion to dismiss, Rosenberg appears (in the Memorandum) to go after Conley's jugular once again as it seemed to The Report to be the case in the motion to dismiss (i.e. the obvious personal attack on Conley), to wit:

In an off-hand sort of way, Rosenberg responds to Marcelli's amended and "verified" complaint (apparently still relying on his original motion to dismiss) in implying that the Conley-on-behalf-of-Marcelli has abandoned? the complaint in favor of a tangential issue of disqualifying Rosenberg in "a vexatious filing."


Notwithstanding Rosenberg's seeming "sleight of hand," the complaint in amended form remains
intact no matter what impression Rosenberg may wish the public to believe.

To the SCPR, Rosenberg's Motion for Sanctions is the equivalent to Conley's Motion to Disqualify.

To The Report, he may point the finger at Conley but to the discerning he is to be "painted with the same brush" as with which he paints.

Readers of this blog should bear-in-mind the SCPR's "half-a-dozen of one" (Conley's Motion to Disqualify) and "six of another" (Rosenberg's Motion for Sanctions) point of view as one reads on. Otherwise, Rosenberg will have succeeded in marginalizing Conley without he himself being "hoisted by his own petard."  A fair minded reader will not allow Rosenberg to escape scrutiny by his own standard.

That Rosenberg continues his "legal" name calling (started in his motion to dismiss) in this latest pleading is clearly indicated in his use of the word "vexatious" as seen in the extract from his pleading as set forth above.
Vexatious Litigation
A legal action or proceeding initiated maliciously and without Probable Cause by an individual who is not acting in Good Faith for the purpose of annoying or embarrassing an opponent.
 Getting deeper into the Rosenberg arguments:

The Report's take on Rosenberg's arguments against his disqualification, to wit:
  • that he (Rosenberg) did not make a false statement (as alleged by Conley) in chastising Rosenberg for using the word "duly" in describing how Maier came to be sheriff (in the February 5th SCDP-CC proceeding),
    • SCPR COMMENT:  Is Rosenberg serious?  
      • To be arguing that Marcelli/Conley have abandoned the complaint seems just a tad silly to the SCPR.  
      • There is no doubt in the the SCPR's thinking that Conley does not personally like Rosenberg and just as soon not have him on the other side of the case and it could be that seeking to disqualify Rosenberg does not advance the Marcelli/taxpayer cause because of the distraction but that is something quite different from abandoning the premise for being in court in the first place.  
      • Isn't Rosenberg himself by focusing on the disqualification factor suggesting that there may well be something to the Marcelli complaint that he would rather not deal with?
    • SCPR COMMENT:  The "duly" part of the legal jargon fight for laymen is like "two ships passing in the night." 
      • Conley sees "duly" in terms of the Supreme Court having ruled on November 6th that the SCDP-CC failed to "legally" appoint Maier because of he did not meet one of perhaps a number of criteria required by Ohio law for one to hold office as sheriff,
      • Rosenberg, understandably, wants to focus not on the substance of the result (i.e. Maier's being Stark County illegal sheriff "from the beginning" of being appointed) but on things like taking a vote in accordance with Democratic Party bylaws and the SCDP-CC making a determination (merited or not in the mind of a body [e.g. the Supreme Court] on the qualification issue.
    • SCPR COMMENT:  An obvious "bone of contention" that Judge Farmer will have to rule on.
  • that he (Rosenberg) does not have a "conflict in interest" in his having a "dog in this fight" (the SCPR's words) in his being paid $20,000 to defend Maier in Swanson v. Maier, quo warranto either in the direct sense nor in the derivative sense of having provided Maier with speculated and alleged "faulty" legal advice (re:  indemnification/malpractice).
  • that Rosenberg (and co-counsel Traven) are not "material witness" and "necessary" witnesses to what advice they gave Maier in Swanson v. Maier, quo warranto and therefore not into a "conflict in interest" situation.
    • SCPR COMMENT:  It could be that Rosenberg will convince Judge Farmer that his take on this issue is supported in law whereas Conley's is not.
    • The Report can see both sides of the argument but Rosenberg's is on procedure (i.e. legal standing [which makes laymen's eyes glaze over] and what seems to the SCPR to be circular reasoning.
    • "To be debated" reasoning?  Yes.  
      • Conley:  Maier was never the sheriff of Stark County and therefore retroactively the Stark commissioners could not pay his legal fees.  Anytime one receives public monies without legal authority, do they not have to be paid back?
        • If so, will not Rosenberg have to indemnify Maier for presumably taking the money "on the advice of counsel?"
        • If so, could Rosenberg be accountable to Maier in damages on Conley's alleged premise and supposition of potential of malpractice in providing the speculated giving of such advice?
      • Rosenberg:   In a sort of way (color of law/good faith) seeks to establish that there was legal authority to pay Maier and such ends any discussion of any potential legal accountability of Rosenberg to Maier and therefore no possibility of conflict in interest on the payment issue which authority negates any need for Maier to assert "on advice of counsel" as a basis for action.
    • SCPR COMMENT:   Again, a "bone of contention" to be decided by Judge Farmer.  

That he used 19 pages of briefing to make his case that the Marcelli/Conley motion to disqualify was a frivolous filing is testament enough in the opinion of the SCPR that, while it may have been "unwise" for Conley to get sidetracked on an issue of which particular legal counsel he was going to contend with on the merits of Marcelli's amended complaint, such number of pages (to repeat:  19 pages)  in and of itself shows that the Marcelli case deserves to be heard on its merits/demerits and that both the motion to disqualify and motion for sanctions are both "red herrings."

To repeat the theme of this blog.

All the motion to disqualify and the motion for sanctions indicates to the SCPR (and the attendant personalized language used by both sides) is that Conley and Rosenberg do not like each other.

One last point on Rosenberg and his apparent attempt to divert attention away from the underlying Marcelli "for the taxpayers" complaint is his focus on wanting a hearing on his own side issue, to wit:

The SCPR was mighty happy to see him request a hearing.

And The Report hopes the court itself will schedule a number of hearings.  But they should mainly be on the complaint itself and "only" tangentially on the motion to disqualify and the motion for sanctions in terms of clearing them off the table.

The Report plans on being in court to videotape each and every such hearing.

It will be a real test for Judge Kristin Farmer to stay focused on "the real issue" in this case (i.e. whether or not Stark County taxpayers have a case to be reimbursed for the Maier receipts and spending) and not get sidetracked on whether or not Rosenberg has a "conflict in interest" or whether or not Conley's client has made "a frivolous pleading."

To The Report the latter efforts are two lawyers going after each other because they plainly do not like each other.

As Stark County commissioner Thomas Bernabei repeatedly says to The Report and all within his hearing that the Stark Dems' fuss as to whom will be Stark County sheriff is "the gift that keeps giving" in terms of the ongoing controversy in the context of side battles.

Of course, the media is a chief beneficiary of all the legal wrangling.

And it appears to the SCPR that we Stark Countians find ourselves witnessing a sort of Stark County World Series of Legal Infighting courtesy of Messers Conley and Rosenberg as manifested by their side issues.

How long will Judge Farmer allow this legal gamesmanship to go on?

Added today, January 9th.

Answer?  Judge Farmer is out of the case.  (Blog LINK providing details of re-assignment of case to Judge Linton David Lewis, Jr.)

Judge Farmer getting out of the case was an obvious thing to do.

Now it is up to Judge Lewis to calm things down.

He certainly has the credentials to do so, but it is so obvious that these lawyers (Conley and Rosenberg) do not like each other.  And, undoubtedly, one wouldn't think that Marceilli and Maier are the best of friends either.

Anyhow, to move on and to cover the pleadings filed since Rosenberg's of December 26th, to wit:
  • (January 6th):  Conley filed a Reply Memorandum [Rosenberg's 12/26 Memo/Disqualify] and Memorandum Contra [Rosenberg's 12/26 Memo/Sanctions].
  • (January 6th):  Rosenberg filed a Motion to Dismiss [Maricell's December 13th] Verified Amended Complaint and Memorandum in Opposition to Motion to Strike.
  • (January 8th): Conley filed a Supplemental Memorandum to Rosenberg's January 6th filing.

The focus of this (Marcelli/Conley) pleading is whether or not (Maier/Rosenberg) made a false statement to the court (in prior pleadings) as to whether or not George T. Maier was "duly" appointed sheriff of Stark County by the SCDP-CC).

In contending with Rosenberg on the matter, Conley says (of course, by the SCPR's interpretation):
"notwithstanding [Rosenberg's] 'spin doctor' analysis, the plain fact of law remains that Maier never was 'the duly appointed Sheriff of Stark County' and [Rosenberg's] misleading affirmative statement that he had been is simply not true."
Similarly, [Conley's] letter to the editor [which Rosenberg has contended was perhaps a impermissible "commenting on a pending case" under Ohio attorneys' Code of Professional Conduct]  ... as subsequently published in two area [i.e. Stark County] newspapers ... was not, as falsely asserted by [Rosenberg] proffered not made for purposes of 'extolling the claims [Marcelli] has made in [Marcelli's "for the taxpayers' recovery] action."
Conley goes on to decry Rosenberg's footnote to the effect that Conley admitted to Rosenberg's interpretation of the import of Conley's letter to the editor.

Other points made by Conley include (The Report's interpretation):
  • that Rosenberg in receiving $20,000 [paid pursuant to an approving court order by Stark County commissioners], but which Conley says was not lawfully paid,  has a personal interest in the case Marcelli v. Maier and therefore should be disqualified as seemingly indicated by the Ohio Rules of Professional Conduct for attorneys,
  • as another basis for disqualifying Rosenberg, Conley says that he [Rosenberg] appears to be in line to be 'a material [meaning necessary] witness" in Marcelli v. Maier for the reason that Marcelli/Conley believe that Maier took the $20,000 (which they believe was not lawfully paid) in that they contend that Maier was not the duly appointed sheriff by the SCDP-CC) on the advice of Rosenberg and that therefore Rosenberg would be a material witness and thereby under the Code of Responsibility would not qualify to continue to represent Maier.
  • that Rosenberg presents "a red herring" argument in presenting a splitting-the-hairs-esque point of a distinction without a difference in Rosenberg's quibbling over whether the $20,000  was "paid in good faith rather than received in good faith."
    • Conley statement:  "In fact, it is clearly possible for funds to be paid in good faith but received in bad faith, particularly when said retention/receipt involves" one such as Maier who was found in Swanson v. Maier, quo warranto (November 6th)  to be a "usurper of public office."
  • Conley's vigorous dispute of various issue in Marcelli v. Maier in and of themselves show that he, Conley, is well within a proper scope of advocacy and that the Maier/Rosenber motion for sanctions for the Marcelli/Conley filings being frivolous is unmerited.

In contending with Conley, Rosenberg says (of course, by the SCPR's interpretation):
  • that Marcelli/Conley should not be permitted to use an "amended" complaint to cure "one of the many legal deficiencies" (i.e. lack of Maier's good faith) contained - according to Rosenberg - in the original Marcelli complaint.
  • that Marcelli/Conley failed to bring all necessary parties into their lawsuit as to the re-branding, bond and attorney fee aspects of Marcelli's claim because the were not actually received by Maier himself,
  • that expenditures made by Maier were made when he was the "de facto" sheriff of Stark County and therefore not susceptible of recovery,
  • accuses Conley in engaging in "unsupported conclusions" in asserting that Maier operated in bad faith in receiving/expending Stark County taxpayer funds under the advice of his [Maier's] legal counsel and that, what's more, the SCDP-CC appointed Maier sheriff under the assurance of SCDP-CC legal counsel Steve Okey that Maier was qualified [on February 5th] to be sheriff and that the appointment in and of itself was enough to conclude as a matter of law that Maier operated in good faith and under "color of law" in receiving and expending county funds,
  • that to require Maier to return monies received/expended would amount to an "unjust enrichment" of Stark County taxpayers,

In his latest rejoinder to Rosenberg, Conley says:
  • that Maier was not entitled to have Rosenberg (of Roetzel & Andress) paid $20,000 from Stark County taxpayer funds because:
    • he never instituted an action pursuant to ORC 309.12 as seemingly the Ohio Supreme Court requires if one is to recover legal fees expended on behalf of the taxpayers,
    • rather Maier chose to get Stark County taxpayer assistance for his defense of Swanson v. Maier, quo warranto through ORC 309.09(A) [county legal defense fund] and that in so doing was attributed by Stark County Court of Common Pleas judge Frank Forchione with being the "Sheriff of Stark County.'
      • which Conley contends was proved to be in error with the high court's finding in its November 6th opinion that Maier was never the legal sheriff of Stark County,
  • that Maier must have received/spent Stark County taxpayer funds under the advice of Rosenberg (a formal written opinion issued to Maier on January 14, 2013) to the effect that he was qualified to be sheriff of Stark Coutny,
    • which, according Conley's way of thinking, makes Rosenberg potentially liable in malpractice and therefore in a conflict in interest which substantiates his/Marcelli's claim that Rosenberg should be disqualified from representing in Marcelli v. Maier.
    • which, again - according to Conley's viewpoint, makes Rosenberg a "necessary" witness as another basis for Rosenberg be disqualified to represent Maier in Marcelli v. Maier.
In an ending note as an underscore to the "bad blood" that obvious exists between Conley and Rosenberg, here is an excerpt from Conley's latest pleading which the SCPR believes make the point that what we in Stark County are witnessing in Marcelli v. Maier is a veritable World Series of Legal Infighting that really has gotten quite personal.

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