MAIER PINS HOPE OF "EQUIVALENCY AS A 'PRINCIPLE OF LAW'" ON REMAINING STARK CO. SHERIFF?

UPDATED AT 09:30 AM

SUMMARY OF MAIER'S LEGAL ARGUMENTS

The doctrine of equivalents is a legal rule in most of the world's patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention. (Source:  Wikipedia)

It appears to the SCPR that George Maier's legal counsel (paid for by Stark County taxpayers contracted at $20,000) is using "the legal doctrine of equivalents" to keep George as Stark County sheriff. (LINK to brief filed May 6th)

Counsel does not specifically articulate equivalency as his argument but it is - in the judgment of The Report - the essence of his advocacy.

Put another way would be to say that Maier does not meet requirements of Ohio Revised Code Section (ORC) 311.01(B)(8) and (B)(9) [LINK to statute] as a matter of law (de jure) but does as a matter of fact (de facto).

Put still another way (a very unlawyer-esque one) would be to say that counsel is throwing a lot of stuff at the seven justices of the Ohio Supreme Court and hoping against hope that enough of it sticks to result in Maier remaining as sheriff of Stark County.

BACKGROUND OF HOW THE QUESTION OF WHO IS TO BE STARK COUNTY SHERIFF GOT TO THE OHIO SUPREME COURT

As readers of the SCPR know, Democrat Mike McDonald (now deceased) won an election in November, 2012 over Republican Larry Dordea to become sheriff-elect in a relatively close election in which Stark Countians were nearly divided 52%/47% as to whom should be the county sheriff.

It was known before the election that McDonald was suffering from esophageal cancer and there was ample speculation that he would not be able to serve if elected.

One SCPR source points to a speech that McDonald made to the Massillon Fraternal Order of Police during the campaign in which McDonald himself made comments which fueled the conjecture.

Some of those who were skeptical about the survival of McDonald to actually be able to serve as sheriff drifted into political cynicism and started murmuring that McDonald's health condition was being hidden by the Stark County's Democratic Party's leadership.

Really.  Why?

So that if an unfortunate and regrettable scenario in which an elected but unable to serve situation should materialize, then the Stark County Democratic Party Central Committee would be commanded as a matter of Ohio law (ORC 305.02) to name his replacement.

Well, as we now know, the situation did materialize.

The Stark County Democratic Party leadership has emphatically denied that any of them had any knowledge whatsoever that McDonald's ability to serve was in question in the run up to November 6, 2013.

To the SCPR, the denials fall in the category of:  who believes that?

Whether or not any of the Stark County Democratic Party leaders knew, there is no question that the materialization (i.e. McDonald's letter of resignation on January 3, 2013) deprived the mass of Stark County voters in the election of their say as to who would be Stark County's next sheriff.

On February 5, 2013 some 177 voting Stark County Democratic Central Committee members gathered at the Mayfield Senior Center and voted 92 (George T. Maier), 84 (Lou Darrow) and 1 (Larry Dordea) in naming Maier sheriff.

Key Stark County Party Democratic leaders (official and unofficial) played major roles in the selection process.

The SCPR evaluates that they were five in number, to wit:

• Randy Gonzalez, Stark County Democratic Party chairman; a Maier supporter,
• Tim Swanson, retired Stark County sheriff; a Darrow supporter,
• John Ferrero, Stark County prosecutor and former Stark County Democratic Party chairman; a Darrow supporter,
• William J. Healy, II, mayor of Canton, a Stark County Democratic Party precinct committee person; a Maier supporter, and
• Johnnie A. Maier, Jr., Massillon clerk of courts, a former Stark County Democratic Party chairman, currently a Stark Dems executive vice president; obviously, a brother George supporter

It is interesting to the SCPR of how in our democratic-republic:

• 171,129 Stark County voters (which, of course, included Democrats, Republicans and political independents)

got reduced to:

• 177 Democratic precinct committee persons

got further reduced to:

• 4 Stark County Democratic Party leaders as centralizing figures of political influence

penultimately reduced to:

• 7 Ohio Supreme Court justices none of whom are from Stark County and who sit in Columbus, Ohio

and, perhaps, ultimately to the persons:

• 3 in number (reference:  from 171,129 Stark Countians) Gonzalez, Johnnie A. Maier, Jr, and William J. Healy, II, 
• Note: Gonzalez as Jackson Township fiscal officer, Maier as Massillon clerk of courts and Healy as mayor of Canton collectively do not represent even one-half of the entire population of Stark County; approximately 378,000)

who (if the Supreme Court goes Maier's way) will have, in essence, selected Stark County's next sheriff.

But that is where we are folks!

America's democratic-republic at its finest, no?

BACK TO THE MAIER ARGUMENTS

In order to remain what the SCPR sees as essentially being the choice of three key Stark County Democratic Party leaders (Gonzalez, Healy and Johnnie A. Maier, Jr), George T. Maier needs to be praying to the Almighty that enough of the stuff being thrown at the Ohio Supreme Court by his legal counsel sticks.

Well, exactly what is that "stuff?"

How about:

• serving two days (January 12 and 13, 2013) as a Harrison County (about an hour's drive from Massillon) deputy sheriff appointee at the hand of law enforcement friend
• while he was Massillon's safety/service director
• constituted "full-time" law enforcement employment (as required by ORC 311.01(B)(8)(a) or (b) within three/four years going back from February 6, 2013,
• serving as a political appointee by the Strickland administration as assistant director of the Ohio Department of Public Safety (ODPS - also director for a few days at the end of the administration)
• (probably at the behest of brother Johnnie, Jr - who had/has close relationship with the former governor as being the first Stark County Democratic Party chairman who endorsed Strickland in the 2006 Democratic Primary),
• Note:  being a ODPS official is NOT listed in ORC 311.01 as qualifying as full-time law enforcement employment,
• attaining ORC 311.01 required law enforcement supervisory experience by bootstrapping himself into supervision in having served as a political appointee in the ODPS which, as pointed out above, is not listed in 311.01 as being a qualifying office,
• meeting the two year post-secondary (high school) educational requirement of the statute by virtue of an estimate by Stark State College officials that his prior law enforcement work experience as a state highway patrolman and municipal policeman would be the "equivalent" of 67 credit hours (60 hours being the standard for two years of post-secondary) at Stark State,
• Note:  Maier's brief does not mention
• that Stark State at a maximum grants 30 hours of equivalency hours as Stark State hours

At the beginning of Swanson's Quo Warranto action, Maier sought to have the suit dismissed on the basis of Swanson not being a qualified person to bring the proceeding.

Maier lost that argument but doing what any lawyer would do, Maier's attorney tries once again as part of his throwing in any and everything including the kitchen sink tries again on the standing issue in his brief.

Then he gets into the politics of the situation.

Isn't that interesting?

Kind of like "the pot calling the kettle black," no?

George, Johnnie and William were not being political?

In reality, the political factor is irrelevant.  But it can serve as diversionary "stuff."

As the SCPR sees it, Maier's counsel was merely attempting to muddy the water and thereby get the court off focusing on the literal requirements of ORC Sections 311.01(B)(8) & (9).

And, to boot, what logic!

Ohio law provides that politicians (i.e. central committee members) select a sheriff when a vacancy occurs and therefore the Ohio Supreme Court should not entertain a Quo Warranto because politics played into selection process?

And, there is the "the party" determined that Maier (and Darrow and Dordea) are qualified.

Whew!

Who would dispute a political party determining the qualifications of candidates for sheriff?

SCPR sarcasm, of course.

How did the Stark Dems qualify the candidates by the criteria of ORC 311.01?

Chairman Gonzalez asked two "select" attorneys (one in the hire of Gonzalez on a Writ of Prohibition filed by candidate Darrow against the chairman) present at the February 5  meeting what they thought as to the qualifications of the candidates.

As if orchestrated by the chairman, the answer, of course:  "qualified."

To him, their opinions were binding.

How convenient.

Other attorneys present at the meeting differed (one of who happens to be the Stark County prosecutor), but, of course, they were ignored by party officials.

To the SCPR, "the party qualification" talk by Maier's attorney was just more of the "stuff" being thrown at the court.

Another diversion from the real role of the court.

The evidence submitted by the Maier camp is replete with George Maier's impressive array of his law enforcement experience going all the way back to when he served as a Hartville police officer and a Tuscarawas Township police officer.

And this, again, is "stuff."

Nobody that the SCPR knows argues that George T. Maier is not de facto thoroughly trained and experienced in law enforcement.

But the generalized training and experience are not the issues addressed by ORC 311. Someone like Swanson needed to bring forth the qualification factor to be adjudicated.

The statute has some very specific requirements that anyone including Maier must meet in order to qualify under the law of Ohio to be sheriff.

Is the rule of law to prevail or is the opinion of political men and women to prevail?

That is the question.

In addition to the Maier brief, the Buckeye Sheriffs' Association (BSSA) a non-profit, law enforcement interest lobbying organization) weighed in with the SCPR deems to be "an almost laughable" - friend of the court - brief.  (LINK)

Laughable?

So the SCPR thinks.

How so?

Well, the BSSA took the position that its lobbying the Ohio General Assembly to enact ORC 311.01 and that therefore the Ohio Supreme Court should look to it as to the determiner of legislative intent and more particularly whether or not the OBSA thought George Maier to be qualified.

Legislative intent?

One goes to the Legislature for legislative history, no?

Not to the Buckeye State Sheriffs' Association, right?

In its brief, the BSSA references the Maier brief (though it had not yet been filed with the court) which indicates that the BSSA was working hand-in-glove with Maier and his legal team.

Talk about injecting politics into the matter?

One might ask who is Maier's political contact within the BSSA, no?

Just some more of the "stuff" being thrown around?

To the SCPR, it's pretty clear that though George T. Maier appears to be de facto qualified to be Stark County sheriff; yours truly doubts that he is  de jure qualifed.

And his deficiency de jure is underscored by the content of the Maier brief.

While he was at it [i.e. throwing what the SCPR thinks is largely irrelevant "stuff" in to his argument, why didn't Maier legal eagle go out and get affidavits from deputies serving under Maier as to how well they think of him?

For the SCPR hears that the rank-and-file at the department think well of George.

Maier also had an offer by the Group 175 folks of Canton's Vassar Park Neighborhood (who are impressed with his effort to get deputies up to strength so as to be able to open up all 501 beds at the Stark County jail) to circulate petitions to gather signatures of Stark Countians who want the Ohio Supreme Court to rule in his favor?

Why not give them the go ahead and throw that "stuff" in to the mix before the court?

Stuff is stuff, isn't it?

WILL THE RULE OF LAW PREVAIL?

What will be interesting to see is whether or not Stark County's chief law enforcer will be held to the de jure standards of the law.

Of course, we will not know such until the Ohio Supreme Court hands down its decision.

The SCPR is not saying that if Maier is successful in having the Quo Warranto denied that such in and of itself indicates he has not de jure qualified.

To know that, one will have to analyze the court's reasoning.

Then and only then will we know whether or not the court found enough in the evidence presented and the arguments made to ensure that the rule of law prevailed.

For now, The Report sees very little in the Maier/BSSA briefs that get anywhere near making the case that George T. Maier literally meets the requirements of ORC 311.01(B)(8) and (9).

Even so, Maier may win with what the SCPR sees at throwing "stuff" and hoping enough of it sticks with the court to give him a victory.

The Report in past blogs has trotted out Craig T. Conley's saying:

The Supreme Court does not have to be right, it just has to be the Supreme Court.

Therein lies the major hope of George T. Maier's quest to remain Stark County sheriff.