The Observation Deck

Below is a copy of the Lakewood Municipal Court docket in a recent case where Kevin Butler's Prosecutor Department defied a lawful Court Order and refused to prosecute a friend of Mayor Summers and a member of Summers' campaign. Butler's co-worker on Summers' campaign was accused with screaming the "F" word at a member of the press (and wife of the publisher of the Observer) and otherwise engage in "disorderly conduct". This is the kind of behavior that Summers' and Butler's buddy, Jay Carson, apparently defends as "civil."

According to Judge Carroll, Kevin Butler's Law Department/Prosecutors would have female victims of verbal harassment and vulgarity directed at them take to violence rather than call the Lakewood Police. Does anyone believe that the Lakewood Police agree with Kevin Butler? I think not.

Judge Carroll wrote citing case law "Therefore, a court in this state functions as a check and balance to the discretion of a prosecutor to dismiss an indictment." Apparently, Butler thinks there are no checks and balances in Lakewood.

Anyway, this is just one more example of Kevin Butler acting as if he accountable to nobody.

Is it any wonder that crime and government corruption is in such a state in Lakewood with a lawless and defiant law director in charge of "justice" and guiding government decisions?

http://gov.courtview.com/oh.cuyahoga.la ... 18CRB00896

Public Docket Information
LAKEWOOD POLICE DEPT. vs RICHARD B ULDRICKS
Case: 2018CRB00896
Print
Date Filed Case Type Judge Balance Owed
07/09/18 Criminal/Traffic PATRICK CARROLL $0.00
Parties
Name Type Address Attorney(s)
RICHARD B ULDRICKS Defendant
LAKEWOOD, OH 44107 ERIC B HERSHBERGER
HAYNES ,KESSLER, MYERS AND POSTALAKIS
300 W. WILSON BRIDGE ROAD #100
WORTHINGTON, OH 43085
Offenses
Arrest Date Arresting Officer Agency
[NA] ANTHONY JR CIRESI LAKEWOOD POLICE DEPT.
Code Description Date Finding Finding Date Degree
509.03 DISORDERLY CONDUCT / INTOX 07/06/18 Dismissed 08/09/18 MM
Tickets
RICHARD B ULDRICKS
Ticket
Number: M59382
Date: 07/06/18
Location: RIVERSIDE DR.
Accident: No
Speed: /
(Posted / Recorded)

Vehicle
Plate:
Reg.:
VIN:
Insured: Y
Make:
Model:
Color:
Year:
Type:
Docket (Show All Entries | Show Entries Paged)
Date Text
07/09/18 Initial Court Date: 07/17/2018 Initial Court Time: 09:00AM
07/13/18 Case called, rights explained. Defendant arraigned and entered plea of not guilty, waived speedy trial, continued for triakl Thursday, August 9, 2018 at 9:00 am.
07/13/18 TRIAL DATE scheduled before:
Judge: PATRICK CARROLL Assigned.
On 08/09/2018 @ 09:00 AM
07/30/18 Motion to Dismiss filed by Prosecutor.
08/02/18 Motion to Dismiss and Joinder in City's Motion to Dismiss filed by Defendant's attorney.
08/06/18 Decision and Order- Lakewood Municipal Court
Cuyahoga County, Ohio


)
City of Lakewood ) Case No. 2018 B 896
v. )
)
) Decision and order
)
Richard Uldricks, ) Judge Patrick Carroll
Defendant )


This case is before the court on the prosecutor's motion to dismiss the complaint. The defendant is charged with disorderly conduct arising out of an incident on July 6, 2018. The defendant, through counsel, entered a plea of not guilty and the case is currently scheduled for trial on August 9, 2018. On July 30, 2018 the prosecutor filed a motion to dismiss. The defendant's counsel filed an additional motion to dismiss on August 2, 2018.

Criminal Rule 48(A) provides that a prosecutor may file leave to dismiss in open court. (Emphasis added). Criminal Rule 48 does not authorize a motion to dismiss without leave of court. Under Criminal Rule 48(A) and R.C. 2941.33, a prosecutor must have leave of court, granted after a showing of good cause, before an indictment can be dismissed. State v. Mucci, 150 Ohio App.3d 493 (7th.Dist. 2002).

As the court in Mucci stated, "These rules and statutes have been promulgated and enacted in order to curb abuses of executive prerogative. Under the common-law rule, a prosecutor had unlimited discretion to enter a nolle prosequi without any court involvement; however, the legislators and courts of this state and the federal government have acted to take this unlimited post indictment discretion away from the prosecutor. . . Therefore, a court in this state functions as a check and balance to the discretion of a prosecutor to dismiss an indictment." (Citations omitted.)

While a trial court should give some deference to the prosecution on a motion to dismiss, the decision to grant the motion is not automatic, but rather, within the court's discretion.

In the present case the prosecutor asserts that the defendant's conduct does not rise to the level of a criminal offense of disorderly conduct. Although the citation, which was written by the police officer without prosecutor review, sets out the applicable section of the ordinance without a specific subsection. The factual basis, for the purposes of the pending motions, is not disputed by either party in their respective motions. The allegations are that while the victim, Jim O'Bryan, and his wife were in their front yard, the defendant drove by the victim's home yelling the "F word" and displaying a middle finger directed personally at the victim.

Lakewood Codified Ordinance 509.03, which mirrors the language of R.C. 2917.11, provides in applicable part:

(a) No person shall recklessly cause inconvenience, annoyance or alarm to another, by doing any of the following:
(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;
(2) Making unreasonable noise or offensively coarse utterance, gesture or display, or communicating unwarranted and grossly abusive language to any person;
(3) Insulting, taunting or challenging another under circumstances in which such conduct is likely to provoke a violent response;
(4) Hindering or preventing the movement of persons on a public street, road, highway or right of way, or to, from, within or upon public or private property, so as to interfere with the rights of others and by any act which serves no lawful and reasonable purpose of the offender;
(5) Creating a condition which is physically offensive to persons or which presents a risk of physical harm to persons or property by any act which serves no lawful and reasonable purpose of the offender.

The prosecutor asserts that the defendant's conduct falls under Lakewood Codified Ordinance 509.03(a) (2). The prosecutor states that the defendant's conduct, by itself, is protected speech, which is protected by the First Amendment of the United States Constitution, unless the comment and gesture were "fighting words."

In State v. Hoffman, 57 Ohio St. 2d 129 (1979), the Supreme Court of Ohio, construing the language of R.C. 2917.11, held that " A person may not be punished under R.C. 2917.11(A)(2) for 'recklessly caus[ing] inconvenience, annoyance, or alarm to another," by making an "offensively coarse utterance" or "communicating unwarranted and grossly abusive language to any person' unless the words spoken are likely, by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace."

The prosecutor asserts that because the victim contacted the Lakewood Police instead of chasing and confronting the defendant, the defendant's conduct was not a violation of Lakewood Codified Ordinance 509.03.
08/06/18 Decision and order continued - The prosecutor's position is troubling. To begin with, it effectively requires the victim to take some aggressive, retaliatory action against the defendant, which could escalate into greater violence by either party. In addition, it effectively conditions the legality of the defendant's conduct on the reaction by the victim instead of the defendant's conduct.

Even assuming the prosecutor's position is legally sound, it does not automatically require dismissal. Lakewood Codified Ordinance 509.03(a) (2) also prohibits "making unreasonable noise." Thus, as the court held in State v. Cunningham, 10th. Dist. Franklin, No. 06AP-145, 2006-Ohio-6373, the prohibition of unreasonable noise was not part of the decision in Hoffman. The court in Cunningham cited numerous cases when a charge of disorderly conduct was not based upon the content of the speech, but only the manner of how the words were spoken, the fighting words requirement does not apply. The citation in this case states that the words were yelled by the defendant.

Similarly, while, as the prosecutor noted, the officer did not refer to a specific subsection of the ordinance on the citation, the conduct could also be construed as turbulent behavior in violation of Lakewood Codified Ordinance 509.03(a) (1). As the court held in State v. Jackson, 2nd. Dist. Montgomery, No. 17128 (Nov. 20, 1998), the additional requirements of fighting words, as set out by the court in State v. Hoffman, do not apply to turbulent behavior. The term "turbulent behavior" is not statutorily defined, but has been construed to include unruly conduct characterized by a violent disturbance or commotion. State v. Reader, 18 Ohio St. 3d 25 (1985). As such, boisterous, confrontational language may be considered turbulent behavior "even if it was not likely to provoke violence." State v. Jackson, supra at 8

A second issue raised by the Hoffman decision is whether the defendant's conduct could inflict injury to the victim. Injury may be either physical or mental, and includes an invasion of any legally protected interest of another. State v. Mills, 1st. Dist. Hamilton, No. CA-960482 (March 26, 1997). Absent from the prosecutors' motion is any reference to the condition of or the reaction by the victim to the defendant's conduct. In addition there is no reference by the prosecutor of notice to the victim that the City of Lakewood is seeking to dismiss the case.

Effective February 5, 2018, the Ohio Constitution was amended to increase victim's rights in criminal prosecutions in Ohio. Ohio Const. Art. I, Sec. 10a. These rights include reasonable notice of proceedings by the prosecutor and written notice by the prosecutor of all of the rights enumerated in this section. Mr. O'Bryan, and perhaps his wife who was also present, meet the requirements of a victim as defined by Article I, Sec. 10a (D). Unsupported statement by the prosecutor that the victim received no injury is not only insufficient to dismiss a criminal charge as a matter of law, but may also be in violation of the victim's constitutional rights.

In addition, the prosecutor's motion does not comply with the open court requirement of Criminal Rule 48. The term "open court" means that court is in session and the judge is on the bench. State v. Pendelton, 5th. Dist. Licking, Nos.10 CA 81 & 82, 2014-Ohio-2024. This requirement is significant, for as our courts are open to the public, it is critically important that decisions on court cases that affect the rights of persons are done in full public view.

As was noted, the defendant also filed a motion to dismiss the charge. While the defendant has submitted anecdotal information about the origin and etymology of the "F word" in his motion to dismiss, there is no supporting documentation. Moreover, the defendant's response goes to the issue of guilt or innocence of the defendant, which is not within the scope of a pretrial motion. In a criminal case, the determination of the defendant's guilt or innocence of the offense alleged is a general issue and cannot be decided by a pretrial motion. State v. Evans, 2nd. Dist. Montgomery, No. 21669, 2007-Ohio-6587. A motion to dismiss is limited to only those issues capable of being determined without trial. Motion to dismiss may not be used to test legal sufficiency of the evidence. Criminal Rule 12 does not create the equivalent of a motion for summary judgment. State v. McNamee, 17 Ohio App.3d 175, (3rd. Dist. 1984).

08/06/18 Decision and Order conclusion -
Based upon the foregoing and the record in this case, the motion to dismiss is overruled. In making this ruling, the court is not prejudging the defendant or making any inference about the ultimate issue in this case. As a single court judge in a small town, the undersigned judge is familiar, to various degrees, with both the defendant and the victim in this case. Although the undersigned judge did not enter a formal order of recusal, the case was specifically assigned to a visiting judge appointed by the Supreme Court of Ohio while the undersigned judge was at a judicial conference to avoid any appearance of impropriety. The issue raised by the prosecutor in the motion, however, does not go directly to any fact finding conclusion, but rather, raises question of law based upon the limited record provided to the court. Another judge will decide this case, either on legal grounds or the facts set out in the evidence at the time of the trial on August 9, 2018.




August 6, 2018 ______________________
Date Judge Patrick Carroll
08/06/18 Motion to dismiss is overruled. OSJ
08/06/18 OSJ to law dept and faxed to deft's atty.
08/09/18 Case called for trial. Present in court were prosecutors for the plaintiff, defense counsel, and the defendant. Opening statements waived. Plaintiff called no witnesses. Defendant moved to dismiss for want of prosecution. Motion granted. Case dismissed.
08/09/18 Case Sentence Order
08/09/18 Section: 509.03 - DISORDERLY CONDUCT / INTOX
08/09/18 Plea: Not Guilty on 07/11/2018
08/09/18 Finding: Dismissed

Stunning. Unbelievable. Outrageous.

This docket entry suggests that the city prosecutor did not call the relevant law enforcement officer as a witness for the trial in order to "gut" the court's refusal to dismiss the case.

WOW!

I have extracted this line from Judge Carroll's opinion to make the following points:

[...]

The prosecutor states that the defendant's conduct, by itself, is protected speech, which is protected by the First Amendment of the United States Constitution, unless the comment and gesture were "fighting words."

[...]

The city prosecutor of Lakewood argues, in effect, that in our city all citizens are permitted to drive around yelling "F-bombs" at one another as a fundamental constitutionally-guaranteed right. This is simply absurd.

As an eye-witness to a different "drive-by F-bomb incident" targeted at a different citizen by this defendant that included both yelling and an infamous finger gesture, the behavior was made in anger, patently offensive, and had no conceivable purpose other than to harass the targeted individual.

It is clear to me that as residents of Lakewood we now know from an official court docket that none of us enjoy the protection of the rule of law with respect to potential harassment.

I have previously called for municipal reform in Lakewood. This stands as a true beacon for why that reform is most urgently needed.

I have extracted this line from court's docket to make the following point:

08/09/18 Case called for trial. Present in court were prosecutors for the plaintiff, defense counsel, and the defendant. Opening statements waived. Plaintiff called no witnesses. Defendant moved to dismiss for want of prosecution. Motion granted. Case dismissed.
08/09/18 Case Sentence Order
08/09/18 Section: 509.03 - DISORDERLY CONDUCT / INTOX
08/09/18 Plea: Not Guilty on 07/11/2018
08/09/18 Finding: Dismissed

"Plaintiff called no witnesses." This means that the city prosecutor did not have the law enforcement officer (who issued the citation) in the court room as a witness for the prosecution and therefore put on NO case.

This was a completely sham proceeding before the visiting judge.

In my almost 40 years of law practice, I have never seen anything quite like this.

Simply unbelievable.

The Mayor and other public officials and municipal employees can therefore be subject to public hectoring which can escalate without centuries of recourse? MAGA

Stan Austin wrote:The Mayor and other public officials and municipal employees can therefore be subject to public hectoring which can escalate without centuries of recourse? MAGA

Stan, minor correction: MLGA.

For anyone new to this line of discussion:
If this were a single stand-alone incident I might agree that there's not much to prosecute. But this individual has a long history of harassment of one kind or another and the City has previously declined to prosecute cases brought to them by the LPD against him.

My posts in this thread are directed at the city prosecutor and that prosecutor's stratagem of putting on a sham proceeding to evade the guidance of the judge to bring the matter to trial on the merits.

I would criticize that stratagem regardless of the identity of the defendant.

In a similar situation, should I be sitting on a municipal bench, this attorney would be banned from practicing in my courtroom. It would not surprise me, if this is exactly what the judge elects to do.

Perhaps, there are extenuating circumstances of which I am unaware, but the court order and docket entry are pretty explicit on the duty of the city prosecutor to actually put on a case with respect to this defendant.

The "dismissal stratagem" used by the prosecutor in this case is way beyond the typical discretion of a prosecutor's office and goes to the very heart of the stricture in the court's opinion that such discretion can be abused absent the supervision of the courts.

Here it was.

An Obvious Civil Rights Lawsuit Against The City of Lakewood

Quoting more from Judge Carroll's Opinion:

"Effective February 5, 2018, the Ohio Constitution was amended to increase victim's rights in criminal prosecutions in Ohio. Ohio Const. Art. I, Sec. 10a. These rights include reasonable notice of proceedings by the prosecutor and written notice by the prosecutor of all of the rights enumerated in this section. Mr. O'Bryan, and perhaps his wife who was also present, meet the requirements of a victim as defined by Article I, Sec. 10a (D). Unsupported statement by the prosecutor that the victim received no injury is not only insufficient to dismiss a criminal charge as a matter of law, but may also be in violation of the victim's constitutional rights." [Emphais added]

I have previously written that the actions of the city administration are careless/improper/questionable in ways that invite more public interest litigation against the City and at added taxpayer or insurer expense.

Given Judge Carroll's written opinion, he has similarly identified a potential constitutional rights violation against the City.

The "dismissal stratagem" used by the city prosecutor seems to bake the cake on that potential violation.

Mark Kindt wrote:An Obvious Civil Rights Lawsuit Against The City of Lakewood

Quoting more from Judge Carroll's Opinion:

"Effective February 5, 2018, the Ohio Constitution was amended to increase victim's rights in criminal prosecutions in Ohio. Ohio Const. Art. I, Sec. 10a. These rights include reasonable notice of proceedings by the prosecutor and written notice by the prosecutor of all of the rights enumerated in this section. Mr. O'Bryan, and perhaps his wife who was also present, meet the requirements of a victim as defined by Article I, Sec. 10a (D). Unsupported statement by the prosecutor that the victim received no injury is not only insufficient to dismiss a criminal charge as a matter of law, but may also be in violation of the victim's constitutional rights." [Emphais added]

I have previously written that the actions of the city administration are careless/improper/questionable in ways that invite more public interest litigation against the City and at added taxpayer or insurer expense.

Given Judge Carroll's written opinion, he has similarly identified a potential constitutional rights violation against the City.

The "dismissal stratagem" used by the city prosecutor seems to bake the cake on that potential violation.

No wonder Judge Carroll gets so little respect from the Mayor and Council; he actually thinks laws have meaning and elected officials have responsibility.

City Council was silent when the Mayor orchestrated the false police reports against Brian Essi.

City Council was silent when the Mayor used Rich Uldrich to intimidate the political opposition.

City Council was silent when the Mayor abused the judicial process to interfere in a criminal case against his button man.

What kind of town do we live in? Do the Mayors political opponents have to fear the police and the prosecutor? Does the Mayors Button Man have immunity?

The question for City Council is: What does it cost you when you remain silent? Why do you remain silent? Is it fear? Or is it agreement with the conduct?

Bill Call wrote: City Council was silent when the Mayor orchestrated the false police reports against Brian Essi.

Actually, according to the Lakewood Fire Chief who was present at the meeting to orchestrate the false police reports against me, the then City Council President, Mary Lousy Madigan, was present at the meeting. Additionally, Mrs. Madigan admitted to me in the presence of Police Chief Tim Malley that she had interacted with the Lakewood Police concerning the bogus complaints against me, yet she "play acted" in an open City Council meeting that she had no idea about the bogus police reports---reports that she instigated.

So, City Council was actively participating in the smear and potential civil rights violations against me.

David Anderson was the only member of Council who arguably broke silence--when he put Madigan on the spot at an open City Council meeting to demand from her a statement as to her involvement. The video is telling and stands a conclusive proof that Madigan is a serial liar.

Brian

AS you well know, City Hall is hiding far more than their liquidation of Lakewood's largest publicly owned asset into the private hands of friends and associates.

Why does a City Hall ignore the findings of three courts trials that have demanded that City Hall turn over documents ruled public?

What is City Hall still hiding and running from?

As I have said before, Mayor Summers and this administration borders on that of a criminal enterprise.

In 2014 no one believed it. Today in 2018 it has become more than obvious to most of Lakewood.

The worst Mayor in Lakewood's history, the most corrupt administration, and a Council that has decided it is far easier to go along, than provide the checks and balances the community not only desperately needs, but thought they were voting for in the last election.

.

Bill Call wrote:

Mark Kindt wrote:An Obvious Civil Rights Lawsuit Against The City of Lakewood

Quoting more from Judge Carroll's Opinion:

"Effective February 5, 2018, the Ohio Constitution was amended to increase victim's rights in criminal prosecutions in Ohio. Ohio Const. Art. I, Sec. 10a. These rights include reasonable notice of proceedings by the prosecutor and written notice by the prosecutor of all of the rights enumerated in this section. Mr. O'Bryan, and perhaps his wife who was also present, meet the requirements of a victim as defined by Article I, Sec. 10a (D). Unsupported statement by the prosecutor that the victim received no injury is not only insufficient to dismiss a criminal charge as a matter of law, but may also be in violation of the victim's constitutional rights." [Emphais added]

I have previously written that the actions of the city administration are careless/improper/questionable in ways that invite more public interest litigation against the City and at added taxpayer or insurer expense.

Given Judge Carroll's written opinion, he has similarly identified a potential constitutional rights violation against the City.

The "dismissal stratagem" used by the city prosecutor seems to bake the cake on that potential violation.

No wonder Judge Carroll gets so little respect from the Mayor and Council; he actually thinks laws have meaning and elected officials have responsibility.

City Council was silent when the Mayor orchestrated the false police reports against Brian Essi.

City Council was silent when the Mayor used Rich Uldrich to intimidate the political opposition.

City Council was silent when the Mayor abused the judicial process to interfere in a criminal case against his button man.

What kind of town do we live in? Do the Mayors political opponents have to fear the police and the prosecutor? Does the Mayors Button Man have immunity?

The question for City Council is: What does it cost you when you remain silent? Why do you remain silent? Is it fear? Or is it agreement with the conduct?

Mr. Call, Mr. Essi, and Judge Carroll each describe potential lawsuits against the City of Lakewood on the basis of the violation of citizen civil rights.

These potential violations may be actionable under either federal or state law.

We can add some other potential civil rights violations to the list.

Employees of the City of Lakewood participated in the management of certain social media sites and routinely deleted comments (or managed policies that resulted in the deletion of comments) made by citizens.

I have previously posted my letter of complaint to the ACLU on this practice.

Truly A Defendant Above The Law

The individuals and families that have been harassed by this defendant over the past several years now all clearly know that he is above the law and that he has again been empowered by the city.

They all understand that it is futile to complain to the Lakewood Police Department, because they know that this defendant is protected from prosecution for cited conduct.

I know that even merely writing this commentary potentially subjects me to more harassment.

The conduct of the city prosecutor in pursuing the dismissal of these charges was an abuse on the court process, an insult to the local bench, and professional disregard to the officer that wrote the citation.

Let me quote from the new Third Amended Charter:

"The citizens of Lakewood rightfully expect their government of elected and appointed officials, and their employees, to behalf legally and ethically following principles of open government. All officials will treat each other with respect and together work to make Lakewood a desirable place to live. The citizens also rightly expect honesty, respect and fair treatment by all involved in governance."

Were the victims, the law enforcement officer, or the judiciary treated with honesty, respect and fair treatment by the questionable stratagems used to achieve dismissal of the charges?

No, it was completely shabby and tainted.

Were the officer and victims apprised of the court date and asked to appear? Isn’t that required by law?

Exactly.

The officer who should have appeared received a notice that the case was off.

The goal of achieving a dismissal of the case, initiated by the prosecutor's motion to dismiss, was successfully accomplished in spite of a judge's denying the dismissal and instructions to the prosecutor to try the case.

This was a sham performed in front of a visiting judge.

This is just another example of the City Law Department doing whatever it deems expedient regardless of its duty of candor to the courts where it appears.

Previously, I have written at length about materially false financial affidavits filed with the Ohio Eighth Circuit Court of Appeals in two separate cases by city lawyers.