CAN THE BERNABEI PROTESTERS PASS THE CONSTITUTIONAL QUESTION OF THE RIGHT TO CHANGE POLITICAL AFFILIATION?

The Stark County Political Report has always analyzed that whether or not Stark County Commissioner Thomas M. Bernabei will be allowed to run as an "independent" candidate for mayor of Canton against two-term Democratic mayor William J. Healy, II would come down to whether or not the Courts of American think the Constitutional Right of Freedom of Association contained in the First Amendment to the United States Constitution trumps narrow political party interests contained in state law (Ohio, of course, in the Bernabei matter).

While the SCPR thinks that political parties are an absolutely needed factor to make the institutions of our democratic-republican work, it is also clear to yours truly that the main political parties (Republican/Democrat) in our great "of, for and by the people" political/government have perverted their respective places in our scheme of government so as to monopolize access to the places of power from which government can be modified to keep that government in tune with "the will of the people, " generally and not just "the will of the political class."

Stark Countians should be thoroughly impressed with Messers Bernabei and Cicchinelli, win or lose ultimately, both well established Democrats in the historical sense of their political lives that they have taken on the powerful forces of the Democrat and Republican political parties in order to pave the way for all of us to shuck our Democratic and Republican parties past affiliations (as yours truly has done) to send a message to the monopolistic organized Republican and Democratic political parties that their political tyranny over the rest of us is about to come to an end.

Political tyranny?

Indeed!

Cicchinelli's attorney Craig T. Conley put it best in that protest hearing in repeatedly posing the question:  "When Francis H. Cicchinelli, Jr was a Democrat, did he take a 'blood oath' forever and ever to remain a Democrat?"

The obvious answer to most of us is "absolutely not."

Yet in the challenge to the Bernabei and Cicchinelli "independent" candidacies the effect of the legal arguments are that they indeed did take a blood oath to remain organized political party Democrats!

Bernabei's attorney Lee Plakas did about as well as anybody could possibly have done before the Stark County Board of Elections (BOE) on July 6, 2015 in making his case to the BOE that:

• Thomas Bernabei failed in his quest to change residences in a legal, meaningful way so as to qualify as a resident of Canton as a precondition of qualifying to run under any designation (Democrat, Republican, "independent," or whatever), and
• Thomas Bernabei is a political opportunist who in his "heart of hearts" is a organization Democrat and yet seeks to make an insincere political label ("independent") change primarily out of political vengeance to Healy who fired in 2009 as his service director and chief of staff.

However, insofar as the BOE was concerned, it was never about the law of the case.

If it were, the SCPR thinks the protesters under Plakas' high quality legal direction might possibly have won at the Board of Election level. 

At the Stark BOE level, the decision on Bernabein was about Stark County (i.e. City of Canton, in this instance) political history, heft and muscle.

The SCPR does think that Messers Braden and Cline were being predominantly political in voting to allow lifelong Democrat run as an "independent" in November.

What matters for Bernabei (and to a lesser extent Cicchinelli) is that he won the local mainline political party battle.

The Report thinks that this level sas the best opportunity for Lee Plakas and the protesters to prevail.

The standard at the Ohio Supreme Court level is likely to be on the issue of:  Whether or not Secretary of State Jon Husted "abused his discretion" in the light of the evidence considered and legal precedent in breaking the Stark County BOE tie in favor of Thomas M. Bernabei's certification as an "independent" candidate for mayor of Canton on the November, 2015 general election ballot?

Here is where the SCPR thinks that the introduction of Robert S. Peck as co-counsel (Peck webpage LINK) with Plakas and may be a factor in the ultimate outcome of the case.

The Report expects opposition briefs to the Plakas/Peck brief (filed in support of the protesters Writ of Prohibition) to focus on Constitutional law questions.

Yours truly's read is that the legal strategy is for the BOE/Secretary of State (and likely a "friend of the court" brief filed by Bernabei's personal attorney) is likely to focus on First Amendment aspects of Bernabei's certification.

Hence - waiting in the wings - for the protesters is likely one Robert S. Peck:

Robert S. Peck, founder and president of CCL, is among the most sought-after appellate litigators within the plaintiffs’ bar. He is credited with having developed groundbreaking constitutional challenges to laws impeding access to courts. He regularly appears before the U.S. Supreme Court and state supreme courts, litigating cases on the merits as well as at the petition stage. Bob’s diverse practice includes state and federal constitutional law, complex civil litigation, federal preemption, punitive damages, products liability, mass torts, consumer protection, Section 1983, and ERISA and Medicare/Medicaid reimbursement. He has previously litigated election law and First Amendment issues.

Bob has taught advanced constitutional law and state constitutional law at The George Washington University Law School and American University Washington College of Law as a member of the adjunct faculty. He is chair of the Board of Overseers of the RAND Corporation’s Institute for Civil Justice; co-chair of the Lawyers Committee of the National Center for State Courts; secretary and member of the executive committee of the Board of Directors of Justice at Stake; a member of the steering committee of the Sedona Conference’s working group on mass torts and punitive damages; and a delegate in the American Bar Association’s House of Delegates. Bob is a past president of the U.S. Supreme Court Fellows Alumni Association and the Freedom to Read Foundation, and a past national chair of Lawyers for Libraries.

But the underlying conditions for Braden and Cline being political were created by William J. Healy, II himself and if he (as a ghost beneficiary and paradoxically the "real" protester) ultimately fails to keep Bernabei off he ballot; he has only himself to blame.

Over his nearly eight years in office, the mayor has been his own worst political enemy.

The SCPR has the highest regard for Lee Plakas.  If he loses this case it will not be his fault.

Mark it down William J. Healy, II.

You yourself have with you political manipulations have set the table for you own political demise.

If Plakas and Peck pull of reversing the Ohio secretary of state, it will be yet an another example of Healy being "the envy of cats with the proverbial 9 lives."

Among the reasons that Mayor Healy faces the prospect of an "independent" Thomas Bernabei, his having been certified by Ohio Secretary of State Jon Husted" last Friday, July 31st on Husted's breaking a tie vote between the Republicans and Democrats on the BOE on July 6th are grounded in the following:

• As soon has Healy assumed office on January 1, 2008 having defeated incumbent Republican mayor Janet Creighton (now a Bernabei colleague on the Board of Stark County Commissioners) he, Healy, began trashing Creighton to all who would listen as to how Creighton had left city hall in complete chaos,
• As a cure to the mess that Healy says Creighton left Canton government in, he brings in Thomas Bernabei, Canton's long time law director, to be a key factor in clearing away the Creighton dysfunction,
• Soon Healy discovered that the cure was worse than the disease and summarily fired Bernabei in January, 2009,
• During his nearly eight years as a Democratic mayor of Canton, Healy has bashed Republicans at the Ohio General Assembly level in concert with Republican governor John Kasich for having cut state funding of Canton government to the tune of five, six, seven or so millions of dollars and thereby compromised the Healy administrations ability to deliver service and infrastructure improvements to the citizens of Canton,

 THE REASONS HEALY MIGHT HAVE TO FACE BERNABEI

Since the Stark County Republicans have no candidate for mayor of candidate due to (in the opinion of yours truly) to the ineptness of Stark County GOP chairman Jeff Matthews (also, interesting enough, director of the Stark BOE) in his in effect "giving up the ghost" for any political competition whatsoever (i.e. any elective office for Canton government) within the political structure of the Pro Football Hall of Fame City, it is natural for organized Republican to have some play in the future of Canton and apparently they think they will have more of an ear from Bernabei than a Mayor Healy running uncontested in November.

Accordingly, wouldn't this backdrop be one of several plausible explanations of why Republican BOE members had a political motivation to want to certify Bernabei?

As fellow commissioners, Commissioners Bernabei (up until May 4th, a Democrat) and the Republican Creighton have been the core of governance of Stark County having effectively worked together notwithstanding different political heritages to restore the Stark County public's political trust in county government after the debacle of leadership in the Stark County treasury which resulted in the agreed to resignation of Stark Democratic Party appointee (1999) Gary D. Ziegler.  When Bernabei and Creighton took office (November, 2010 and January, 2011; respectively) county finances were in shambles.  Creighton and Bernabei had done so well in bipartisan governing that Stark Countians approved a 1/2 sales tax increase (the JSST; Justice System Sales Tax) which has gone a long way towards healing the loss of county services and infrastructure improvement that came as a consequence of the pre-Creighton and Bernabei assumption of county office.

Step back for a moment.

During this time, Healy was still bashing Creighton in part for the difficulties his administration was having in bringing Canton out of the fiscal (i.e. revenue short falls and projected deficits) and physical (i.e. deteriorating neighborhoods, high crime et cetera) doldrums.

Accordingly, think that the "bleeding the reddest blood in all of Stark County" BOE members Braden and Cline did not have a political memory on Healy (the ghost protester) on July 6, 2015?

As soon has John Kasich to office in 2010, he in conjunction with the Ohio General Assembly (Stark County members:  Republican Kirk Schuring [R, 48th], Democrat Stephen Slesnick [D, 49th], Republican Christina Hagan [R, 50th] of the Ohio House and Republican Scott Oelslager [R, 29th] of the Ohio Senate) devised draconian cuts to local government funding a part of the solution to curing an $8 billion state fiscal deficit and consequently disrupted local government entities (villages, cities and townships) fiscal operations in ways that altered the ability of many of those entities including the city of Canton to provide services and make infrastructure improvements/repairs.

And guess who was at the forefront of making a political issue of the cuts in Stark County?

You've got it:  Mayor William J. Healy, II.

Recently, Healy served a term as president of the Ohio Municipal League and in that role hyped up the castigation of elected statewide Republicans including Stark Countians for imposing the cuts.

Accordingly, think that Democrat William J. Healy, II ripping fellow statehouse Republicans Schuring, Hagan and Oelslager and of course the Republican governor himself was not a part of the subconscious of Republican BOE members on July 6, 2015?

Of course, it was Republican secretary of State Jon Husted who broke the Stark BOE tie Bernabei's way.

Is is part of the SCPR conjectured BOE retaliation on Mayor William J. Healy, II?

The Report thinks not.

Evidence to support this thinking?

Husted ruled (in breaking as Stark BOE Republican/Democrat tie his way) Democrat George T. Maier onto the November, 2014 general election ballot to oppose viable Republican candidate Larry Dordea even though he had misgivings about Maier meeting then-existing statutory qualifications specific to being an Ohio sheriff.

Husted however ruled to get into that fracas and made his decision on erring - if there was an error in his ruling - in favor of ballot access.

To the SCPR, such a posture indicates that Husted is one player in the whole process of Maeir, Bernabei and Cicchinelli who adheres to fundamental democratic-republican values in arriving at a basis for his tie-breaking vote.

Husted's decision makes Bernabei and Cicchinelli "odds-on-favorites" to prevail at the Ohio Supreme Court level (presuming, of course, Steve Okey is authorized to appeal for the protesters in the Cicchinelli challenge).

The question for Healy is:  Will the cats be yowling in envy at his having escaped a once again Healy generated personal political crisis?