HAS BALAS-BRATTON ATTORNEY CONLEY PUT TOGETHER "THE PERFECT BRIEF?"

By mid afternoon on Wednesday George T. Maier nemesis and Cynthia Balas-Bratton attorney Craig T. Conley had filed his client's brief and evidence with the Ohio Supreme Court in furtherance of his client's protest of George T. Maier being the Democratic candidate for sheriff in the May 6, 2014 primary election.

We shall know within a week, give a day or two, whether or not Conley put together "the perfect brief" in terms of being "the winning argument."

By the SCPR's analysis, Conley's brief is pretty impressive, perhaps even perfect, but - as The Report as frequently opined in these pages, in making a ruling "the Supreme Court does not have to be correct, it just has to be the Supreme Court."

Actually, the statement comes from Conley himself who, as I recall, picked it up from another source.

What is interesting about the potential of the Conley argument is that it is so constructed that the high court may never get to the merits of the case.

Really?

How's that?

THE BACKGROUND

Remember Conley's focus on one Deametrious St. John during the run up to the February 21, 2014 hearing on the Balas-Bratton protest?

St. John, one of two Stark County Democratic Party appointees to the Stark Board of Elections (BOE), had been foolish enough to make himself a media star and make pronouncements that indicated to Conley and many others that he (St. John) had already made up his mind on how he would be voting on a protest filed by Conley's client (Cynthia Balas-Bratton) on George T. Maier's qualification to be a candidate for Stark County sheriff on the May 6, 2014 Stark County Democratic Party ballot.

Balas-Bratton filed her "protest" with the Stark BOE on February 11th.

The BOE met on February 17th to set a hearing date (February 21st) and to dispose of several administrative and procedural issues.

On February 21st the hearing was held and as expected to the Republican Party appointed BOE members (Curt Braden and William Cline) deadlocked with the two Democratic members (St. John and Sam Ferruccio, Jr), and it was left to Secretary of State Jon Husted to break the tie.

Which, surprisingly enough he did in siding with the Democrats saying that he chose "to err on the side of ballot access" and that he was unable to determine one way or the other whether or not Maier was qualified under Ohio Revised Code (ORC) Section 311.01(B)(9)(a) or (b).

In doing so, the SCPR believes that Husted wittingly and intentionally left a large hole for Balas-Bratton and her attorney to drive a bus through in their quest to have the Ohio Supreme Court reverse him.

And who better to drive that bus than one Craig T. Conley.

Of all the legal counsel taking part in the Maier qualification matter, The Report thinks Conley is most knowledgeable and prepared.

And that takes in a lot of territory.

Readers of the SCPR will recall the filing of a quo warranto by interim Sheriff Tim Swanson on February 12, 2013 (Greg Beck, the lead counsel) to have Maier (appointed by the Dems on February 5, 2013 to fill in for Sheriff-elect Mike McDonald [who could not take office as required on January 7, 2012 due to an illness from which he died on February 22nd] removed as a usurper in that he was not qualified under ORC 311.01 to be sheriff.

The Ohio Supreme Court agreed with Swanson and Beck and removed Maier on November 6, 2013.

How impressive was that?

On December 11th, the Dems reappointed Maier.

Consequently, the battle of his ORC 311.01 looms large.

Sections 311(B)(9)(a) or (b) are a focal point of the Balas-Bratton challenge to Maier's candidacy to serve beyond December 31, 2014 as Stark County sheriff.

Had St. John not mucked things up with his desire to be a media celebrity, the SCPR thinks that Maier had a better (though likely still not better than 50/50) chance to remain on May's ballot.

And in doing so, he handed Balas-Bratton a gift that The Report thinks has plenty of promise to be George T. Maier's undoing.

What organization wouldn't like to be an executive vice president (St. John) who in a quest to be the local yokel "from the big city" savior? 

It is interesting to the SCPR that St. John appears to look down his nose at Stark County's "organized" Democrats on the basis of his having learned the "art of 'power' politics" at the feet of Cleveland/Cuyahoga County political strongman George Forbes might end up being the reason that George T. Maier is ruled off the May ballot and concomitantly the Democrats have nobody to challenge Republican Larry Dordea.

The Report imagines that St. John these days is frequently down on his hands and knees praying to the "God of 'all things political'" that his "day in the media sun" is not THE basis on which the Supreme Court makes its decision which results in Maier's disqualification from the ballot.

In a St. John induced-decision scenario, Ohio's "court of last resort" rules that St. John had locked himself in by his own words and, thereby, "on the face of it" tainted the BOE hearing process to such a degree that Balas-Bratton ended up being denied her due process of law constitutional rights.

Should the Supreme Court negate St. John's vote, then Maier fails to qualify by a 2 to 1 vote and Husted's tie-braker is thereby negated.

As the SCPR understands Conley's position, such is how he sees the likely outcome of the Supreme Court's handling of Balas-Bratton v. Husted, et al.

If Conley is correct and the Ohio Supreme Court takes the St. John way out, the court avoids having to go into a thoroughgoing analysis of the provisions of ORC 311.01(B)(9).

By Ohio statutory law, Husted was compelled - as the tie-breaker -  to sift through the evidence submitted and make a "finder of fact" determination in the light of ORC 311.01 statutory standards as to whether or not Maier meets subsection (9)(a) or (b) criteria.

Husted's failure (assuming the court rules that St. John should not have been one of the BOE decision makers) will have in effect left Maier "in the lurch" on the matter of his qualifying or not under the ORC 311.01 scheme of things.

Moreover, the man who self-describes as being a "a political operative" and who insinuated on February 15th of this year (the day he was replaced by the Stark Dems as a BOE member with his term set to expire on the 28th) that the Stark Dems were nothing but political "rubes" in comparison to his political upbringing under Forbes, will likely be thought in Stark Democratic Party Executive Committee circles (if his media grandstanding results in Husted getting overturned) as being the man who cost George T. Maier an opportunity to be elected sheriff.

CONLEY'S BRIEF

Thanks to St. John's media performance, Conley comes right out of the box with with a pathway the high court has to like.

The Balas-Bratton brief opens with the "threshold" question of whether or not Dem BOE member St. John's pre-hearing media comments worked a denial of "due process of law" on the prosecution of her "protest" of Maier's candidacy.

There is a saying:  "the first impression is the last impression."

In first signaling the Supreme Court that the court has an easy way available to dispose of the Writ on a concrete constitutional basis (.i.e. denial of due process of law) due to St. John's media exuberance, Conley has made, the SCPR thinks, an indelible impression on the court in using language that will catch the court's attention and likely will stay with the seven justices throughout the course of the court's deliberation.

No doubt the court will look at the ORC 311.01 arguments with interest.

However, it should be readily apparent that getting into taking the evidence submitted by the various parties in this consideration of Balas-Bratton v. Husted, et al and comparing it the provisions of 311.01(B)(9)(a)/(b) is a rather daunting task even for a body like the Ohio Supreme Court and its vast legal resources.

Readers need to recall that in Swanson v. Maier, the court refused to go further than an analysis of ORC 311.01(B)(8)(a)/(b) inasmuch as the court's scrutiny of those provisions was enough for the court to determine that Maier' failure to qualify under either of them made it superfluous to go on to 311.01(B)(9), to wit:

Accordingly, the focus of this SCPR blog will be on the Balas-Bratton "due process of law" argument which The Report thinks could well be a dispositive argument.

However, Conley does make another (in addition to the ORC 311.01(B)(9)(a) and (b) arguments) interesting argument under ORC 2733.14.

2733.14 Judgment when office, franchise, or privilege is usurped.

When a defendant in an action in quo warranto is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, franchise, or privilege, judgment shall be rendered that he be ousted and excluded therefrom, and that the relator recover his costs.  Effective Date: 10-01-1953 

Of course, as we Stark Countians know all too well, the Ohio Supreme Court did find Maier guilty of usurping in its November 6, 2013.

Could this argument be another "easier way out" of the more difficult ORC 311.01(B)(9) legal minefield?

BUILDING THE "VIOLATIVE OF DUE PROCESS"
ST. JOHN BIAS ARGUMENT

Conley skillfully wends his way through the St. John "for Maier" history:

1. St. John [SCPR note:  executive vice president of the Dems] citing qualification criteria endorsed George T. Maier [SCPR note: over Lou Darrow] on Maier personal stationery pre-February 5, 2013.
2. St. John voted as a Stark County Democratic Party Central Committee (SCDP-CC) member on February 5, 2013 to appoint George T. Maier as McDonald's successor.
3. St. John voted as a SCDP-CC member to appoint Maier a second time (after the 11/06/2013 Supreme Court finding a violation of 311.01(B)(8)) on December 11, 2013.
4. St. John in a interview to local media within days of his sitting as a "quasi-judicial" public official on the Balas-Bratton "protest" of the Maier candidacy stated:  "I've always believed he [SCPR note:  Maier] met the qualifications."
5. Balas-Bratton insisted pre-hearing that St. John step aside and not be one of the determiners of her protest but was refused by St. John himself, the Stark BOE and the Ohio secretary of state and in doing so preserved her "denial of due process" arguments.
6. St. John, at the conclusion of the Balas-Bratton "protest," [SCPR note:  "go figure,'] moved to qualify Maier and voted for his own motion.

Hence, Conley's powerful closing on the "denial of due process" argument:

The SCPR thinks it is unlikely that the Supreme Court will wade into the ORC 311.01 waters given the compressed time frame within which it must act given ballot publication timeline concerns especially with having been provided the justices' powerful legal pathway on "denial of due process" grounds.

On the chance that the Supremes decide to wade in, it seems to the SCPR that advantage is still with the Balas-Bratton position.

In the Applicable Jurisdiction section of his brief, Conley paints a vivid picture of principles of law that apply to Balas-Bratton.

1. Citing 1995 Supreme Court legal precedent, Conley sets up that when it comes to interpreting ORC 311.01 provisions, "it is the responsibility of the courts to enforce the literal language of statute.
2. Courts are not to add or delete words to/from statutes,
3. A year is not the cobbling together of parts of years to make up full years, rather a year is defined in Ohio law to be "12 consecutive months."  (SCPR note:  the definition of a year is a bone of contention in the interpretation of a year under ORC 311.01(B)(9)(a))
4. A number of Supreme Court decisions (despite the fact that Jon Husted says the law is unclear and ambiguous) have held 311.01(B)(9)'s language to be "definite," "unambiguous," and clear with specific reference in the precedent cases to:
1. the requirement of two years supervisory experience as a peace officer, and
2. the requirement of the officer being at the rank of "corporal or above."

THE TWO YEARS OF SUPERVISORY EXPERIENCE- AS A PEACE OFFICER

Even it one does not contest (which Balas-Bratton does) whether or not Maier's stint as the second-in-command (and about seven days as first-in-command) at the Ohio Department of Public Safety (ODPS) meets the standard of ORC 311.01(B)(9)(a), to wit:

(9) The person meets at least one of the following conditions:

(a) Has at least two years of supervisory experience as a peace officer at the rank of corporal or above, or has been appointed pursuant to section 5503.01 of the Revised Code and served at the rank of sergeant or above, in the five-year period ending immediately prior to the qualification date;

Conley's bottom line position is that Maier is short a number of days having "at least two years of supervisory experience as a peace officer."

Maier in his application process did try to take the February 11, 2013 to November 6, 2013 time as SCDP-CC appointed sheriff to solve the ODPS time period deficiency.

A problem?

Indeed.

In its November 6th decision, the Supreme Court said that in effect Maier was never the lawful sheriff of Stark County.

So how can he bootstrap himself, Conley argues, into meeting the two year requirement of ORC 311.01(B)(9)(a) by adding service time that the Supreme Court itself said in Maier v. Swanson was from a legal standpoint "as if it had never occurred?"

THE TWO YEARS OF SUPERVISORY EXPERIENCE
- AS A CORPORAL OR ABOVE

Inasmuch as Maier did not have a literal rank of "corporal or above," the Maier legal team can only argue "equivalency."  


And that folks, the SCPR thinks, is a losing position because of the "literal" rule of construction Ohio's courts are held to and the reality that "equivalency" appears nowhere in ORC 311.01(B)(9(a).

AT LEAST TWO YEARS OF POST-SECONDARY EDUCATION

Finally, Conley attacks the contention by the Maier proponents that he meets the criteria of ORC 311.01(B)(9)(b), to wit:

(b) Has completed satisfactorily at least two years of post-secondary education or the equivalent in semester or quarter hours in a college or university authorized to confer degrees by the Ohio board of regents or the comparable agency of another state in which the college or university is located or in a school that holds a certificate of registration issued by the state board of career colleges and schools under Chapter 3332. of the Revised Code.

And to make short-shrift of Maier's failure to meet this criterion of Ohio statutory law, one need to go no further than to look at the affidavit of a Stark State College official (Vogley):

"As of the date of this affidavit, Maier has not earned any credit at Stark."

And Maier testified at the February 21st "protest" hearing that he had not done any academic work at Stark State College."

Closed case on ORC 311.01(B)(9)(b), no?

A key point for purposes of the Supreme Court's handling of the Balas-Bratton Writ, the SCPR thinks, is that Secretary of State Jon Husted completely and utterly failed to make any finding on ORC 311.01.

In doing so, he totally undermined the import of his breaking the tie on the Stark BOE in terms of result holding in siding with the Democrats.

Had he merely said in his written findings that he adopted the findings of the Democrats as stated in the Dems position paper, he would then have placed a huge burden on Balas-Bratton to show that in doing so he had "abused his discretion."

But he didn't and thereby damaged the likelihood that Maier's place on the ballot will be validated.

With friends like the Republican secretary of state, who needs the enemies?

And one might add:  with friends (for the SCDP) like Deametrious St. John, who needs any enemies?

The clincher however for Balas-Bratton prevailing in Balas-Bratton v. Husted, et al may well be that her attorney Craig T. Conley in his submissions of documents (the brief and evidence) to the Ohio Supreme Court on Wednesday may have submitted "the perfect brief!"