David Anderson wrote:It has always been my contention that Senator Skindell had used the court system to keep these careless and baseless allegations of illegal and secret meetings going to serve a political purpose. It's worked to a degree as many have bought it hook, line and sinker. Senator Skindell's statement after the second dismissal continues to promote the same cynical claims.
This seems to go rather far in disparaging Senator Skindell, and, by implication, our court system as well.
He has proposed that his actions are motivated by concern over violation of open-meeting laws. His record, and others' corroborating interpretations, argue that this explanation is sincere; the Appeals Court's own action suggests that his personal judgment is at minimum far from an unreasonable one.
Lengthy elaboration follows…
Senator Skindell announced that he believed Lakewood City Council to have violated open-meeting laws. We cannot ever know with certainty what another person actually believes. But his long record of public service seems to argue
for his sincerity, as does the principle of Occam's razor, both on its own and in combination with the multiple other qualified attorneys who have expressed support of his professed opinion.
As for what we know:
Senator Skindell filed a lawsuit charging violation of open-meeting laws, related to proposed Lakewood Ordinance 49-15, in December 2015. According to a publication of the Ohio Attorney General's office, this is the approved and the only corrective available to persons who believe that open-meeting laws have been breached. (The judiciary has asserted the existence of another corrective, of which more anon, but the AG seems not to recognize this formally.)
Skindell v. Madigan was dismissed after what, in comparison with other lawsuits of interest to the present audience, it does seem fair to characterize as atypically brief consideration.
Before the end of December 2015, Senator Skindell filed an appeal. Absent affirmative evidence of a secret motivation on the part of the Senator, it seems unfair to disparage this act as illegitimate; it's difficult to see why we fund higher courts if exercising the right to appeal is unreasonable.
Further, courts are (so far as I understand) broadly empowered to decide whether or not an appeal is valid. I am not an expert, but my impression from the docket is that the Appeals Court did formally determine that the Common Pleas Court's judgment merited reconsideration. At all events the case spent more than one year before the Appeals Court, which does suggest that it is exaggeration to characterize the appeal as a cynical exercise in propaganda. Could not the Appeals Court have determined this rather more efficiently, if so?
Meanwhile, the citizen-initiated referendum on Ordinance 49-15 proceeded throughout most of the appeal. Petitioners began work which led to the referendum before Skindell even filed his appeal. The Board of Elections verified adequate signatures to require either repeal, or a referendum, on Feb. 3, 2016. Before the end of that winter, Lakewood City Council formally ruled out any option besides a referendum.
Subsequent to all of this—i.e., months after the end of any conceivable doubt that a referendum on 49-15 would take place—the Appeals Court agreed to hear arguments in the appeal of
Skindell v. Madigan. Even later, the Appeals Court ordered the parties in
Skindell v. Madigan to pursue mediation; the court actually scheduled a mediation conference
after the referendum's outcome.
In January 2017, attorneys for the appellees (Madigan, et al.) supplemented an October motion to dismiss by arguing that the referendum cured "Any alleged failure of Lakewood City Council to deliberate Ordinance 49-15 in open meetings."
By this point, said referendum had been effectively an inevitability for nearly one full year. What changed, between then and the Appeals Court's dismissal of
Skindell v. Madigan earlier this month? According to the Appeals Court judges, a plurality vote to uphold Ordinance 49-15 is precisely what changed.
As this only took place long after the Appeals Court decided to hear the appeal, and decided that the case should go to mediation—and as the dismissal does not cite any other material basis for that ruling—the resultant impression is decidedly mixed.
The Court of Appeals demonstrated, in multiple ways, skepticism that the Common Pleas Court's dismissal was an above-reproach judgment. The Court of Appeals then dismissed the appeal, itself, solely based on the outcome of a referendum which took place more than a year after the meetings charged with violating the law. From a lay perspective (and nothing more than that), the dismissal appears to say "having called a lower court's judgment of this matter into question, we now decline to rule one way or another on whether certain activities broke the law, owing to an event which took place after the activities."
It's entirely understandable that consternation has followed, on the part of both parties in the case. In fairness to the Appeals Court, the judiciary's primary job is to issue judgments on the basis of often complex law, rather than to practice public relations. (For example, it is odd that the court scheduled a mediation hearing after the outcome of the referendum, then determined that this outcome merited outright dismissal of the case. But, quite conceivably judges are unable to rule on a motion until it has been made. These are deep waters and an actual attorney can offer far superior speculation, at minimum.) All the same, it seems questionable to blame
Senator Skindell for causing doubt among the public about compliance with open-meeting laws, as part of a devious scheme.
Once more: He has proposed that his actions are motivated by concern over violation of open-meeting laws. His record and corroborating interpretations argue that this explanation is sincere; the Appeals Court's own action suggests that his personal judgment is at minimum not an unreasonable one.
One may still differ with his judgment. But asserting that it is completely unreasonable, or that therefore he is acting deceptively based on some secret and dishonorable motivation, does seem unwarranted.
