SCPR SERIES (VOL 2) MASSILLON ET AL AFFINITY ET AL: CAN JUDGE HARNETT KEEP "A PUBLIC RELATIONS" FACTOR OUT OF HER DECISION MAKING?

A LAYMAN-ESQUE LANGUAGE TAKE ON MASSILLON V. AFFINITY

"It smells like Limburger cheese and is full of holes like Swiss cheese"

SO SAYS A LEGAL ANALYST WHO HAS REVIEWED THE COMPLAINT

On November 21, 2014, The Stark County Political Report wrote a political analysis on Chryssa Hartnett's judgeship victory over Curtis Werren for a place on the bench of the Stark County Court of Common Pleas.

Although The Report does not do political endorsements as such as The Repository does, in certain instances it is pretty easy to detect (usually over the course of multiple blogs) who The Report thinks is the more merited candidate.

Chryssa Hartnett from the get-go (i.e. her courageous attempt to get Republican governor John Kasich to appoint her [a Democrat] to replace retiring Republican V. Lee Sinclair on the Stark County Court of Common Pleas, General Division bench) has been impressive to the SCPR.

Comparing her legal credentials to Curtis Werren's on their face placed her in a category of clearly meriting a Kasich selection over the former president of the Stark County Red Cross president who hadn't practiced law for several years.

Kasich is not the most zealous partisan Republican (e.g. his ongoing fuss with President Trump)

And yet he could not bring himself to select merit over political considerations.

In June, 2013 he appointed Werren to succeed Sinclair.

In November, 2016 the voters of Stark County weighed-in and overrode Kasich.

Despite he Hartnett's obvious superiority over Werren on the merits of their respective qualifications, one never truly knows whether a judge will be a "rule of law" juris or one mindful of "political winds" until a tough case comes along.

Fast forward to January 5, 2018 and BINGO! that tough case comes hurtling into the Stark County Court of Common Pleas and right in to the lap of Judge Chryssa Hartnett.

Now we have a tough, tough, tough case (from a perspective of raw emotions the underlying cause has evoked [i.e. folks losing their jobs]) upon which to start making assessments on whether or not Judge Hartnett can keep the "rule of law" separate and apart from from what appears to some as being a public relations effort enlisting the aid of the court.

For it appears to the SCPR that the sum and substance of Massillon v. Affinity is mostly born of a public relations dynamics in the clothing of being "at equity" legal action.

Here are a few examples of why The Report thinks that the complaint amounts to "grasping at straws" in attempt to get the court to weigh in on an effort push Quorum/Affinity into negotiating concessions that likely are not in the offing on legal arguments alone.

Example 1:

House Bill 462 is an "after the fact"  effort of Stark County legislators Kirk Schuring (the 48th Ohio House District) and Thomas West (January 5, 2018) by Quorum that Affinity would be closing on February 4th.

And here is where the proposed legislation is today:

Example 2:

Get this.

Both the Ohio legislation and the Massillon ordinance are what lawyers know to be ex post facto (after the fact) laws.

In criminal law matters such bill becoming law are clearly unconstitutional at the state and federal level.

While such is not all that clear in the civil area of law, it is hard to imagine that any court would require a private sector entity from shutting down its business according to ex post facto legislation even for 120 days absent some "in effect before the announced shutdown" constitutionally tested law.

In its motion for a temporary restraining order, the plaintiffs themselves seem to recognize the "legal hill they have to climb" as the SCPR thinks is evident in this excerpt:

(SEE "COMPLETE" VERSION IN APPENDIX AT END OF BLG)

A statement with the motion that the announced shutdown came as a complete and total surprise is met with disbelief on the part of several Massillonians that the SCPR has talked with.

One points out that Mayor Catazaro-Perry and her husband (practicing out of Affinity) certainly had to be "in on the know" to "buzz" about the financial difficulties at the Quorum owned facility.

Another says flat out (a person of strong business acumen and experience) that he finds Quorum/Affinity's claim of financial stress completely believable.

The complaint may have stated some viable claims on the damage done to specific plaintiffs, but curiously enough there is no specific prayer for damages.  Only injunctive relief is prayed for.  Take a look:

NOTE:  HIGHLIGHTING & UNDERLINING ADDED

There is a legal maxim:  "equity follows the law" meaning that equity will not allow a remedy that is contrary to law.

Moreover, there is this:  courts will not provide equitable relief when there is an adequate remedy at law.

Who can fault the plaintiffs for trying? 

These are indeed desperate times in Massillon especially in that the city stands to lose some $600,000 in income and property tax revenues, medical professionals will be left scrambling for new employment and patient users of Affinity will have greater distances to cover in order to get medical care.

A legal analyst told the SCPR, the complaint seems clearly more "public relations" driven than grounded on solid "at-law" principles.

There are signs that perhaps the public relations of the situation in Massillon might be having  success with Judge Hartnett.

It was a tad distressing on a "rule of law" standard for her to close to the public, what appears to be tantamount to have been a TRO (temporary restraining order) hearing (note:  plaintiffs had filed a Motion for a TRO) along with the complaint.

From Repository reporter Ed Balint's account (January 17, 2018, the date Massillon v. Affinity was filed):

She said she appreciated and understood the newspaper and public’s interest in the matter but wanted to “encourage all parties to speak freely (and work) toward a resolution” while discussing the merits of the court filing and procedural steps involved with the hospital closing. “I need to be mindful to encourage the frank participation on all sides without all sides being concerned it’s being represented in the media,” Hartnett said prior to the session.

Here is what came out of those "out-of-the-public-view" talks involving Hartnett and legal counsel for the respective sides to the controversy.

It was nice of Judge Hartnett to explain in non-legal language her rationale for closing the hearing (however one want to term it), but the "real" question that should have been asked by Balint on hearing her explanation was simply this: 

Did she have any "legal reasoning" to offer as justification for issuing the TRO.

If Balint was up on his game in terms of knowing about Repository v. Unger (1986), he might even had, in accordance with standards set forth in the case, asked whether or not Judge Hartnett thought it had any relevance to "the public is excluded" decision of January 17th before he departed the scene.

SOURCE:  GOOGLE SCHOLAR SEARCH

The SCPR, for one, doubts that Judge Hartnett had the case by the highest authority court in Ohio in mind when she did the exclusion.

Some key findings of the Repository/Unger decision include:

First.

Next.

Highlighting/Graphics Added in This & Following Excerpts

Next.

Next.

Next.

What makes Judge Hartnett's closure to the public so troubling is that it appears that it came at her initiative and that that of either party.

The closure would sit better with the SCPR had one of the two sides moved for closure and that the matter was briefed (briefs being made available to the public) and argued in open court citing legal standards and not a reliance on common knowledge that people might be more candid in they can speak in out of the public view.

In a context of a formal hearing open to the public, Judge Hartnett could have made "findings of law" to support her action.

Such as being the proper course of action was impliedly addressed by Repository v. Unger, to wit:

In sum, the SCPR is disappointed by Judge Hartnett's action of seemingly cutting out the public on her personal calculation of what would be best not by any evidence taken wherein it was manifestly clear that the parties would not try to seek out common ground in the public view.

It could be that before February 1, 2018, the parties will reach an accord on extending the time for closing Affinity Medical Center.

Even if they do, excluding the public from the January 17th session (whatever one wants to nominate it) was not exactly and endorsement of "the rule of law."

One might come away thinking that the court got played by a public relations gambit, no?

APPENDIX

Full opinion of Repository v. Unger

(SOURCE OF REPOSITORY V. UNGER (GOOGLE SCHOLAR)


COMPLETE FILING OF MOTION FOR TEMPORARY RESTRAINING ORDER