08-0408 case no. 08-0408 original action in prohibition affidavit in support of complaint for writ...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL.RAYMOND J. WOHL, CLERKOF COURT OF THE BEREAMUNICIPAL COURT11 Berea CommonsBerea, Ohio 44017

Relator,

V.

THE HONORABLE DICKAMBROSE, JUDGE OF THECUYAHOGA COUNTY COURTOF COMMON PLEAS1200 Ontario StreetCourtroom 18-ACleveland, Ohio 44113

Respondent.

CASE NO.

08-0408

ORIGINAL ACTION IN PROHIBITION

AFFIDAVIT IN SUPPORT OF COMPLAINTFOR WRIT OF PROHIBITION

VOLUMEIOFII

David M. Cuppage (0047104), Lead CounseldmcuRp0a)cllmacolaw. comScott D. Simpkins (0066775)sdsimn a(7,climacolaw. comClimaco, Lefkowitz, Peca, Wilcox

& Garofoli Co., L.P.A.55 Public Square, Suite 1950Cleveland, Ohio 44113Telephone (216) 621-8484Facsimile (216) 771-1632

Attorneys for Relator, Raymond J. Wohl,Clerk of Court of the Ber•ea Municipal Court

Gregory M. Sponseller (0012350)zyPonseller&bereaohio. comDirector of LawCity of BereaBerea City Hall11 Berea CommonsBerea, Oluo 44017Telephone: (440) 826-5800Facsimile: (440) 234-5628

za^FEB 2 2 2008

CLERK OF COURT-'UPREME OF OH------------

IN THE SUPREME COURT OF OHIO

STATE OF OH[O, EX REL.RAYMOND J. WOHL, CLERKOF COURT OF THE BEREAMUNICIPAL COURT1 1 Berea ComnionsBerea, Ohio 44017

CASE NO.

ORIGINAL ACTION IN PROHIBITION

Relator,

V.

THE HONORABLE DICKAMBROSE, JUDGE OF THECUYAHOGA COUNTY COURTOF COMMON PLEAS1200 Ontario Street

Cotu-tirooni 18-ACleveland, Ohio 44113

AFFIDAVIT IN SUPPORT OFCOMPLAINT FOR WRIT OFPROHIBITION

Respondent.

STATE OF OHIO

COUNTY OF CUYAHOGA

1, David M. Cuppage, being duly sworn, depose and state that the followiug facts are true

and accurate to the best of my infoLnlation, lcnowledge and belief:

1. I am counsel to Rayniond J^Nohl ("Relator"), the duly elected Cle-ic of Court of

the Berea Mmiicipal CoLirt. The Berea Municipal Court is a statutory court pursuant to Atticle

IV, Section 1 of the Ohio Constitution and is organized and existing pursuant to the general laws

of the State of Ohio, to wit: Ohio Revised Code §1901.01(A). As the Cle•lc of Court, Relator is

cl arged with performance of all duties assigned to the Clerlc of Court pursuant to Ohio Revised

Code §190131 including, but not necessarily limited to, receiving, collecting and issuing

receipts for couu-t costs. The Bet-ea Municipal Court has jurisdiction over the cominunities of

Berea, Brook Parlc, Middleburg Heights, Olmsted Falls, Olmsted Township, Strongsville, the

MetroParks, and the Ohio State Patrol.

2. Respondent, Dick Ambi-ose, is a judge of the Cuyalioga County Court of

Common Pleas and is assigned to the case known as Michael A. Lrngo, et al. v. State of Ohio, et

cal., case n.unber CV 05 564761 (hereinafter sometinles refen-ed to as the "Class Action"). The

Class Action was initially filed on or about June 8, 2005. The Cuyahoga County Court of

Common Pleas is a court organized and existing pursuant to Article IV, Section 4 of the Ohio

Constitution and is located in Cleveland, Ohio.

3. On or about August 22, 2004, William C. Glick was issued a traffic citation

containing two charges arising fi-om the sarne incident, one for driving under the influence and

the othe- for weaving\lanes violation. Before the Berea Municipal Court, case captioned Tlie

City uf Middleburg Heights v. lfillicana C. Glick, case no 04 TRC 03862, Mr. Gliclc pled not

gui ]ty to both charges. Subsequently and pursuant to a plea agreement negotiated by his counsel

with the City Prosecutoi-, Mr. Glick pled guilty to an amended cliarge of reckless operation with

the original two charges being dismissed at his cost. Mr. Glick paid a fine and court costs upon

journalization of a sentencing entry. A true and accurate copy of the records before the Berea

Municipal Court is attached hereto as Exh. 1.

4. On or about September 13, 2006, Plaintiffs Michael A. Lingo, Gregory B.

Williams and William C. Glick (liereinafter, the "Class Action Plaintiffs") filed a First Amended

Class Action Con plaint for Declaratory Judgment, Injunction, and Other Equitable Relief

against the State of Ohio and new-party defendaaits, Department of Treasury and Raymond J.

Woltl., Clerk of the Berea Municipal Court. A true aud accurate copy of the Amended Complaint

is attached hereto as Exhibit 2.

2

5. On or about Novembcr 8, 2006, Relator filed his Answer to the First Amended

Couiplaint. A true and accurate copy of the Answer is attached hereto as Exhibit 3.

6. On or about December 6, 2006, Relator filed a Motion for Summary Judgment

seeking dismissal of the Class Action. A tnie and accurate copy of the Motion for Summary

.ludgment is attached hereto as Exhibit 4. Attached to the Motion for Sturunary Judgment and

included herein is the Affidavit ofRaymond J. Wohl (Tab 1), a true and accurate copy of the

Affidavit of Colleen Coyne, Deputy Clerk (Supervisoi-, Criininal Division) of Berea Municipal

Court datcd March 2006 (Tab 2), and the deposition of Colleen D. Coyne (Tab 3). Other

cxhibits and unreported cases are excluded from this Affidavit.

7. On or about August 25, 2005, Class Action Plaintiffs filed a Motion for Class

Certification. A'frue and accurate copy of the Motion foi- Class Certification is attached hereto

as Exhibit 5.

8. Tliereafter, on o- about February 20, 2007, Class Action Plaintiffs filed a

Supplement to Plaintiffs' Motion for Class Certification. A true and accurate copy of the

Suppleinent is attaclied liei-eto as Exliibit 6.

9 . On or about April 1 1, 2007, Relator filed his Consolidated Reply Brief in Suppoi-t

of Motion for Sunmiaty Judgment and Brief in Opposition to Plaintiffs' Motion for Sununary

Judgment. A true and accurate copy of the Consolidated Brief is attached hereto as Exhibit 7.

Attaclied to the Consolidated Reply Brief and included herein is the deposition of William Glick

(Tab A) and the Affidavit of Colleen Coyne, Deputy Clerk (Supetvisor, Criminal Division) of

Berea Municipal Court dated Mai-ch 27, 2007 (Tab K). Other exhibits and unreported cases are

excluded fi-om this Affidavit.

3

10. On or about October 24, 2007, Class Action Plaintiffs filed a Motion to Certify a

Defendant Class. A true and accurate copy of the Motion to Certify a Defendant Class (without

exhibits) is attached hereto as Exhibit 8.

11. Relator has opposed each and every motion to certify a plaintiffs or defendants

class action.

12. On or about October 30, 2007, Relator filed a Motion to Dismiss the Amended

Complaint as Respondent laclcs subject n7atter jurisdiction to review the assessment and

collection of coui"t costs. A true and accurate copy of the Motion to Dismiss is attached hereto as

Exhibit 9.

13. Respondent has failed and refused to dismiss the Amended Complaint and is

ahout to cxc-cise and lias exercised judicial power, the exercise of that power is not authorized

by law. A ti-ue and accurate copy of the Docket is attached hereto as Exhibit 11.

FURTHER AFFIANT SAYETH NAUGHT.

Davtd M. Cuppage (0 471^ 4,Counsel for Relator, Raymond J. Wohl,Clerlc of Court of the Berea Municipal Court

Sworn to and subscribed in my presence this^ ^ tday of February, 2008.

N3?ft4ry Pt2blic

JOSEPHINE Wt. t.4Ar,lAClNotary Public, State of Jhio

My Commission Expires June 1 5, 2008

4

SE5EA MUNICIPAL COURT-CRIMINAL AND TRAFFIC DIVISION

04T1tc03862-1-2

viol.Dara: 08/22/04

WILLIP:M CGLICK2082 CARABEL

LAKEWOOD OH 44107

MH114292M'DDLESURG HTS

DOB: OB/16/73Q'WC3-1*738 w^ al b-5°î -

434. OlAl DUI (^MBEL AFFIXEDHERE) 30^ ^. ^^( O

Operator Lic.

RM736776State Enclosed

OH YES

AffiantCourt Date - L SGT. R. SWANSON08/27/04 N^j -WF+IVERAerETICKET

Atty-^"i Th2.14 Ônet / R -^^WAIVED

BOND: CASH Y7°k ER50'NA;L" 9ond No

Bond Co. .^^ Receipt No. 5[

Condition Bond q Bond Con't

INSURANCE: PROVEN q NOT PROVEN .

J/M

Date

ARRAIGNMENT: q CONi1Nl1E SO DEFENDENfM GAN OBTAIN COUNSEL,

PLEA; RESETTO:( _

LLL

,q/GUILTY ii GUILTx D NO CONTEST q FOUND GU!LTY

.^WSP q NO WSP q PT q TRIAL q PH qPSI J/M

q WAIVE PH BOGJ ^ SENTENCE NOW OVER ^ FINE ONLY, $`

CHANGE PLEA: GUILTY q NO CONTEST-Conee , daiaots

( ZEU q SF.NTEkCE NOW O^Fî

q DEFER SENTENCE TO

m FINE ONLY $ + COSTIM2 ) Relrier ^

VEHICLE: q _DAY IMMOBIUZATION PERIOD. ' ^61G- 05 .AFTER HEARING, p RELEASE VEHICLETO:

- DEFENDANT _ HOME INNOCENT OWNER

CASE DISMISSED ( ,^2 /4 /4,V)

COST PAID BY: q CITY/ STATE 4EP-0EFENDANTAFTER HEARING, q APPEAL DENIED, OCCUPATION DRIVING GRANTED.

q ALS TERMINATEDO OTHER,

WARRANT:

q CAPIAS(,_/_/_) _J/M OCOLLECTBOND

q N/AWAFA/_) _J/M q NNCOMPACT

q M°WARR_J/M q OTHER/ADDL

q FORFEfTBONO_J/M

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_J/M

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C1- -1-C1-1

EXHIBIT

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DE 0 9 Z^(^_WANER OF ATTORNEY ,...^J Yr O-C^V^ ^'-I, the above named Defendant herein, having been fullyof the right to obtain Counsel, and if indigent, to the rightan attorney appointed, do hereby waive such right in Openin accordanoe with Ohio Rules of Criminal Procedure (Fand Rule 44 B & C) and this waiver applies equelly to allcases.

--^ Da et (f Defend

WAIVEROFTtME 3EK-^- Q-15' 05 F-50I, the above named Defendant herein, having been fully ad,open court of my Hght to trlal upon the charge before this Court within

days after my arrest or the service of summons purthe provisions of the Ohio Revisad Code Sac. 2945.71, andknowledge of same, do hereby waive such right and consentBerea Municipal Court'e setting this matter for trial at saidconvenience and this waiver applies equally to all related cases.

Date Defendant

Wifness to each signatun: above:

Date Fine Costs i Total

Date Rec't. No. Amt. Paid Bslance

cs3 qi6gn r

JOURNAL ENTRY

)efendantNameIJ^K,-,ASE #;HG: DCel^ . oPE^2 . C12^^L NEXT DAY 02/13/2006 5:00pm EST S33394 59755835-000002 For: ABUD1ITY OF BEREA 01001992121 BEREA COMMONSEREA, OH 44017

1ALAN BUDNEY1TRC03662

402565147

IllllllllflpÎIiIIIIIIIIIIIIIIIIeIIIINIl1lIIIII(Illllllllllllllllf^l^ll^llllllllllNl _32525147-00001 Return To IRON MOUNTAINJOata, t'JI tiOsts anu uln r,vy,n,,,e

Irescdbed by PmbaJt n.

k$ `/5-V Fine

q Defendant is given `days to pay F/C

q Suspend Fine/Costs q _ hrs. CSW in lieu of F/C

n compliance with O.R.C. 2929.22 (E), the Fine and ImprisonmentIre imposed as:

Speoialy adapted to deterrence of the offense or thecorrection of the offender.

q The offense has proximately resulted in the physicalharm to the person or property of another.

q The offense was committed for hire or for purpose ofgain.

q In compliance wilh O.R.C. 2929.22 (F), the court findsthe total fines do not put an undue hardship onDefendant or his/ her dependents and does notaffect his/ her ability to make restlhAion, and thatDefendant Is able to pay.

days jail; s _

LkLls

q 3.6 days EMHA per 1 dayjall after days served

q In no event to serve less than days

q Cmdit - days served at

q t3hour )4

\

72hour

q Alcohol Treatment per O.R.C. 3793.02

q CSW altemative authorized at 10 hours per day of jail.

6Brivers License suspended for 4 y^rs.G

start

n.

>=aa-csS

After^_rdays, Driving Privileges with Proof of Insurance.

!^ To, From & For Work ÂA/ NA Meetings

/ lZ44e/ From Probation q Medical Purposes

q School/ College q Other:

Driving privileges effective only after all fines/ costs paid.

q Alcohol Ignition Interfock, to be reviewed after 6 mos. in use.

q Interlock Not Required On Employers Vehicle For Work

olntensiv c o Monitored c Probationfor_^yrsCnndition Restimtionis ordered as determined by Probahon

o Victim/Defendant demand OH-set OH for

o After OH, Mag./Judge determines Restitution $

o Restitution payment

repeat the same or related offense

OPDk7(

perweekfor/ `F' weeks.

q Reinsrate O.L. within dayslmonths or o perProbation.

o Maintsin Valid O.L.o Comply/complete all programs/treatment ordered by P.O.

o Take and pass random drug tests ordered by P.O.e Other conditions:

êfendant advised that failure to comply with all conditionsof_probation will result in tho io,^posit:on of ma:.imumpenalties allowed under the charge Defendant pled to.

q Vehicle immobilized for _ days. Effective

q After hearing, upon Prosecutor request and after due notice

to Defendant, vehicle forfeited to

q M.O. Hearing Date

APR 15 ZpADated

q Do Motion

411/s/^S

BEREAMINICIPALCOURT-CRIMINALANDTRAFFICDIVISION P9 104^o'^F q ;2r), I .

I

^

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11

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04TRC03862-2-2 MH114292MIDDLEBURG HTS

viol.. Dat.a: 0 B/ 22 / 04

WILLIAM C GLICK

2082 CARABEL

LAKEWOOD OH 44107

aOB: 08/16/73

432.08A CON ^^BLE rEFFIXED HERE)(M4)

uDerator Lic. State Enclosed

RM736776 OH YES

Plates Affiant

court Date DLH1853 SGT. R. SWANSON08/27/04 NON-WAIVERABLE

Atty: Phone:qTICKET

WANED

BOND: CASH SURETY 10% PERSONAL $ Bond No.

Band Co. Receipt No.

Condition Bond

INSURANCE: q PROVEN q NOT PROVEN

JIN1

ARRAIGNMENT: q CONTINUESODEFENDENTCAN OBTAIN COUNSEL,

PLEA: RESETTO:(_!_/_)

q GUILTY q NOT GUILTY q NO CONTEST q FOUND GUILTY

q WSP q NO WSP q PT q TRIAL q PH

0

D

O

D

I

I

JrtN

CHANGE PLEA: q GUILTY q NO CONTEST q FG ( _ / _ / _

q SENTENCE NOW OVER q PSI q DEFER SENTENCE TO

FINE ONLY $ + COSTS.JIM

VEHICLE: q _DAY IMMOBILIZATION PERIOD.

AFTER HEARING, q RELEASE VEHICLE TO DEFENDANT.

qRELEASEVEHICLETO INNOCENTOWNER.

q RELEASE VEHICLE FOR HOME IMMOBILIZATION.

AFTER HEARING. qAPPEAL DENIED, OCCUPATION DRIVING GRANTED.

qOCCUPATIONAL DRNING GRANTED

qALSTERMINATED

qOTHER,JMl

WARRANT: q CAPiAS(_/-!_) JM1

q NfAWARRJIMq MOWARR_JIMq FORFEITBOND(_/-/_) _Jim

q COLLECTBOND(_l-1-) _J!M

WAIVER OF ATTORNEYI, the above named Defendant herein, having been fully advisof the right to obtain Counsel, and if indigent, to the right to haan attomey appointed, do hereby waive such right in Open CoLin accordance with Ohio Rules of Criminal Procedure (Rule 22and Rule 44 B & C).

Date Defendant

WAIVEROFSIMEI, the abovenamed Defendant herein, having been fully advisedopen court of my right to triai upon the charge before this Court with

days after my arest or the service af summons pursuantthe provisions of the Ohio Revised Code Sec. 2945.71, and with fiknowledge of same, do hereby waive such right and consent to tfBerea Municipal Court's setting this matter for trial at said counconvenience.

Date

Wltness to each signature above:

Date

Date

Fine

Rec't. No.

Defendant

Costs

Amt. Paid

Total

Balance

I

I

I

a

9

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O^ OR'SCDURT,LUYAHOGAGOUMV,OHIO ^^ 114292

.Wp9EREAMUNIICIPALGOUP

CUYAHOGA COUNIY JUVEHILE COURT TICKET NO.

]STATEOFOHIO - 9.M14RYOFWODLE9UHGHEIOHrG CASENO. mT ^ N

AME

;TREET Z/ AaL lu1JIL?_ ___ ) G ZIPITV, STATE ^^^^' N

JCENSE ISSUED / MO.^ /' YR._^/EXPIREB BIRTHDATE 20 y^ STATE.)¢/' v_-

iSN / / • rJ p D.O.B.. MO NJ OA1'^YR ^

qAOE I,fjEY Hyp'.y{r ^

R Jea

PRDOFISHOWNPONSIBILITY`^ P ^

q NoICENSE NO. J^'

,IC. Class DOT k q Does Not Apply

w^ TO DEFENôqoy: COMPL

M.YO OPERATEGIP KEDIWALKED/A UL

C)-ass q mm q Cycle q O Er 26001 q Bus p Hez. MalZ

IEHICLE: YR. n'l .L -MAKE ` /, f^BE1D^V9 TYrPE^ ^®^-- >

OLOR ^^^L3y `'' LIC. y^/3 fGJ.J ^ STATE Q12f m

N A PU LIC HIGH/3y VC^ NA LY /j,A^ ^

^^^^^^ IMP 1 IRELTION OF TRAVEL E I]'"T1 IS{/ 5 C W qLfi-- /ai

'4 CUYAHOGA COUNTY (NU. I BI AND STATE OF OHIO. IN THE CITY OF MIDDLEBURG HEIGHTSI

. AND COMMITTED THE FOLLOWING OFFENSE:

7

n

7

9

q ORC 0 ORD q T.P.SPEED'. MPH In MPH zoneq Over limlls q Unreas contl, q ACDA

t q Radar q Air q VASCAR q Pace q Laser q Ststionery q Moving

OMVI: nder Ihe Inlluence ol alcohollOrug of ablrse q ORC ^dZRD p T.P.

q Prohlbneb 01 ob olconol concenValmn BACq Blood reath q Utlne elusetl

DRIVER LICEN§E: p None q Revoketl q SuspenGeb q O RD .

q EmplreE: q 6 mos. or less q Over 6 manth=_Suspenslon Type

SAFETY BELT - FaiWre lo wear q ORC p ORD q T.P.

q Drrver q Passenger q Child Reslreint

THER OFFENSE ri; I / O c _ q T'P^ ,C,^^.rur_ o

OTHER OFFENSE q ORC q ORD 0 T.P.

q DRIVER LICENSE HELD q VEHICLE SEIZED STATISTICAL CODE

PAVEMENTr ry q Wef O Snow q tcy

VISIBILRY: Clear q Clouay q Dusk Ighl

WEATHER: q Rain q Snow q Fog a Atlverse

WRAFFIC q Heavy q Mo06ra1e ^• ighl q None

NPIAREA: q Business q Rural q ResiEenlial q InCUSIry q School

l CRASH: q Yes $No q Almosl Oausetl q Injury q Non-Infury q Fatal

L q Crash A.P. Numbar

O RE.MARKS

ACCOMPANYING CRIMINAL CHARGE q Yes fô TOTAL hOFFENSES

TODEFENDANT: SUMMONS P RSONALAPPEARANCEREOUIRED

Iou are summnne0 enb orbereU Io eppeei er COURT DATE A^.0210DLEBUNG HEIGHTS MAYCH'S COURT YEAR

MICDLE9URG HEIGHiS CITY H0LL If BIDIIS)WEhSTBAGLEYPOAD.MIDGLEBUNGHHC,MS.MI0M1]] Tq o P.M.

-aEaEA.[uvOaaon IFYBUFAILTDAPPEARATTHISTIMEMO]CUYAHIX'iAL0UM1'JUVErvREL0UP1t910L<HNEGIEPVFrvUE plp y BÊARFESTEG

CLEVELnND.ONIDA<11.ffusaummansservetlperaOnallyonlhetlefenbemnn D 2P^^fNa issuingcharging lax enforcemenl oBiWfet9les UnJer the pavllles ol perryry antl lalsif¢alipnnel ha haa reeE,gH9 ab4va eq0plaint ano(ial X Ls fine.

rO eIssum^Cnargmg Law Enlorce enl Pm r

FACE OF COURT RECORD

Y-7

9eEOe No. I UnA I Zone

COURTRECOflD

^

Ohio Bureau of Motor Vehicles

Report of Law Enforcement OfficerAdministrative License Suspension l

Notice of Possible CDL Disqualification / Immobilization I Forfeiture

A. Name DdveisLicenseNUmber Class T State`T^ ^ 2r1N% = L :xr.s d o/ ,

Current StreetAddress (As venfmd by Officer)L.i'^^L-

City Ohio County of Residence State Zip Code' 'f r.:w^*r`

'

43lOr`"ut7î+_n,^C ;:^!-Date of9itlh

^ 1Social Security NUmher

`^^C?^ V4 Digit Court Code County of Violalion_

LT.cS:J 7 i^ 7 I I'DateofViolafion TimeolViolation

nH ^ (KAM q PMVIN.°/ '?K YHY fr 0 r/- Ll

Date of Refusal or Test Time oJ sa Ar Test Year Make License Plate Na Type Plate Btate

4 1 lzo AM q PM ^ un P!^ -w ^ ha . , 6: C^ uR,^ F. ^(c./L

VehicleOwnersName Dateot,Birth StreetAddressAI.X

Gityl l.nt ^c ^

Stete^ I' i D

Zip Code7=/ a 7

'At: (Street Address)Vebiele Stored. CN ^ ^j7^1`!C .l^l ^^(^ i.^3/^ !1^<•XAJ(4fiVdt^ _l

B. Officer to Complete for All OVt f Physical Controf Arrests: I requested the dAver, by reading advice on the back, to submit fo a chemical test(s) for alcoholThe driver. concentrafion andMr for the presence of any centrolled substance. My reasonahle grounds for OVI /

^ Refusedtosubmlttotest(s). PhysicaiContmlanestbetoretestwere: 'r^- +/NU: °J Crv..fc-Irif

q Submlfledtotest(s).0. % alcohol test result r._ ^.-<<, avL> /Ji-

(Cirde One) Whole BloorgreafR,\l,Jrine, Blood Serum, or Blood Plasma.Was placed under an admm"`sT2trve license suspension (4511.191)License was seizedOffender was provided a copy of this fonn at the time of anest.

C. Oncerto Complete Appllcable Vehicle Sanctions: q Vehicle seized under 4511.203 only (DUS or wrongful entmstment of a

q Ucense plate(s) seized motor vehicle) It so, Do Not Mail this farrn to the BMV

q Vehide seized under 4511.195 (OVI) q Vehicle subjectto immobllizationq Vehlcle sub(ect to forfefture

0. OfNcer to complete If Offender was Operating a Commercial Vehick: q Commerclal vehicle per definition (4500.01(Q

q Read and showad advice to offender (4505.17) q 24-hour out-of-servjce arder

q Refused to submil to test(s) . q CDL to be disqualified

q Submitted to test(s) 0. °!. alcohol test result q CDL seized

(CircJe Orre) Whole Blood, Breath, Urine, Blood Serum, or Blood Plasma q Hazardous materielq Operatedamotorvehicleunderthein0uenceofacontrolledsubstance

q BACperse contentof.04orabovewithoutOVIchargeq BAC per se content of.04 or above with OVI charge

E. The advice on the back of this form was read to me and I , ^~ y 9no sihave received a copy of this form: S gna `df DnSe =^ -'

F. Complete Below Only for an OVI I Physical Control ARREST;We, the undersigned, certify that tne advice prescribed by the General Assembly (under 4511.192), was shown to the person under anest and read to him or her in the presence

of the arrestingroNicer aÂne other paFSOn.xK.. ^-..,_^.

SIGNATURE,OF ARRESTING DFFICER

OHO

ENFDRCEMENTAGENCY N.C.I.C.NUMBER

neCirCOT tJi Imnlecc CTGCFT 4n1GFCArug r,*, ,F e'"i ^nC LF

v„w^nvw^.,.^......,..^......._,.____ , .^-.

f ~ / ZIP CODESIGNATURE DF'NITNESS^ CITY ./ STATE^ _______rf_-..-__..-__._

COMPLETE BELOW ONLY ON OVI ARREST, PHYSICAL CONTROL ARREST, OR-:f?

ARREST INVOLVING COMMERCIAL VEHICLE. AFFIDAVR OFA.RRESTING OFFICER: ARRESTING°bFFICER SIGNRI"URESTATE OF OHIO, COUNTY OF AL':??à>rr:%^^^f'

^:' '• -I cer0 I anested Ihe "rson, havin g had raasonable grounds to believe the person was ' -i=-or upon public or pd ate property used by the public for Swom to before me thls r-r day ot _ p.•ir_-

a ona hi hwayerafio a vehicle up g ,g pvehicular travel or parking in the State of Ohio, under the influence of alcohol andlor drugs ofabuse, in physical control of a vehicle while under the influence of alcohol anrpor drugs of xabuse, or with a proNbiled concentra0on of alcohol in the Wnole blood; blood serum,6ioodplasma, breath, or urine. I advised the person in the prescnbea manner of the consequencesof a refu,sal.er-e-testrfihe-persoo-eltheueased the test, or was under arre fpLWlandlodêthe test and had a pmhibited concentration of aicoho(m e whole blood, blood serum, bloodplasma, breath, or urine (all as described above), In the case of a commercial vehiGe (Napplicable) I had reasonable gmunds to believe the person wasdrivirng a commercial motorvehicle in the State of Ohio in violation of section 4506.15 ot the Ohio Revised Code. Theinformation cantained on this form is tme to the best of my knowledge ano belief.BINV 2255 1104

-

NDTARY PUBLIC'S SIGNATURE _/ +: T ,^ 1

X

DEPUTY CLERK GF, COURT,,'S SIGNATURE: . «.. .`/"i^f '^f^^ f,iCityof

WhitetOriglnal - eMV Canary - Law Entorcement Pint-Court Goidenrotl-t)ffender

I

BEREA MUNICIPAL COURT

11 BEREA COMMONS

BEREA, OH 44017

440-826-5860

FAX: 440-234-2768

BOND RECEIPT

RECEIPT #: 2004101557 DATE POSTED: 08/27/2004

OPERATOR: DMCK 05:07 PMPAID BY: WILLIAM C GLICK

DEFENDANT: WILLIAM C GLICK

-CASE/TICKET---------------- DESCRIPTION-------------------- ----------------------------------AM.T PAID04TRC03862 PAYMENT BOND CASH BOND $50.00

--------------------------------------------------------------------------------TENDER: AMOUNT TYPE

$50.00 CHECK

9I

BEGINNING BAI:ANCE:

AMOUNT PAID:

AMOUNT CREDITED:

ENDING BALANCE:

AMOVNT TENDERED:

CASH BACK:

REFUND CHECK:

$0.00

$50.00

$0.00

$0.00

$50.00

$0.00

$0.00

RCDD: 08/27/2004

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tlJi IIRnm C. C7I1LK

OoSa C1912,43€L AvE. '

^KEWona) OI-^ ^lY 10 ^

BE IT 'B@D lME8E0, THAT ON THE

_livlWLrr^ C. C=Lt t-1<

COMPS®.INT H@OfEe

o?a D®R oF /4iA CTI. ®.D. 2® 0`7` ,

@tID (SURETY)

PESSOH@LLY ALaAE@8ED BEPOEE , Cf.EEE/DE@UT: CI.E6E OF

ffiDDLEEURC BEIIGHTS MAYOR'S CODRT St® JOYSTLY .®Bm ATS. ACOO.S.ffiSGE THENiSELt'LS TO

OWE q'g,ry+ CITY OF gLI.DDY.FBYIEG HEIGHTS TAE SUM OF `^:^^. -^jJr.' 1^41il,99EIJ /toc-DOLL@ES, TO BE`

Ik^PIE4? OR TR - GDn-DS AMM CK&i^SgL z FAidD AND Te 59F.W^G S, AED PI(1BE gAB.TICU'L®$LY ON THE

('ffÔ•^,rf^y °ôa DOYd,@B.S, DEPOSITED WITH SAID

CLESICJDEP01^d CLEEE IN LIEU OF SURETY ON RgiS RECOGNIZANCE, IF DEFAULT BE Bf®DE IN THE

COBIOITIOtd FOLI.OSd.QTG, TO WIT:

THE COffiD^SO& OF THLS, RECOGNIZANCE IS SOCE, a'HAT IF TEE ABOVE BOUPIIDE%

W 1LL1AVk, Uf SEAF.L PERSOIdAT.LY BE A19D ®PPE®B. BEFORE THE

TiIADLEBIIHG EEYGHTS B7AYOB.' S COIIBT IN SAID CITY, ON TEE DAY OF ^} fil (n 7/1 ^

20 0^1 ®T 'J n O'CLOCK PI. T13EAT AND TURRE TO ANSWER THE CHARGE OF

0\/f 3f.ol(a.,C1) C4^,'/.vul,JS (^^wrCSû^43w;cw Vf//,

AND SH@TS. FORTHM APPEAR BEFORE SASD COIfET, FQOM TIME TO TIM, ON SUCH DAYS AS B[AY BE

$E¢jUYEED; IIHPiII. ME CASE SH= BE F39®I.LY DISPOSED OF, AAD ABTDE THE J81DGHM OF TBE

COURT AND NOT DEPAILT WITHOUT LEA9E, THEfQ THIS $ECOG8Tr7Axc:F SHALL BE VOIID, OTHERUM IT

SSALL BEET6Î IN FLIY,I. FOECE AND PiRTOE IB L®A.

55

BY BOLIDS2fAN

/DEPOTY Cil= tDF?LTDDLEBFTEG SE3Gfl""iS 2YAYOB.' S COiIET IDEFENDAm'1' ^c

Transfer Entry To BEREA MUNI COURTIN THE MIDDLEBURG HEIGHTS MAYOR'S COURT

MIDDL EBURG HEIGHTS, OHIO

MIDDLEBURG HEIGHTS MAYOR'S COURT vs.WILLIAM C. GLICK2082 CARABELLAKEWOOD, OH 44107

Mayor's Case No.: 04TRC05697-2

Date of Arrest: 08/22/2004

Race: W Height: 5'09" Hair: RED SSN: 274-78-5553 O/L: RM736776Gender: M Weight: 225 Eyes: GRN DOB: 08/1611973 Phone:

Judgment EntryFor good cause shown, the above-styled case is hereby transferred to the

BEREA MUN[ COURT for the reason stated below: c

t

(X )

t )a*

Defendant entered plea ofNot Guilty.

The Court lacks jurisdiction to proceed pursuant to R.C. 1905.01.

( ) Defendant has demanded a trial by jury:

( )

.»

A conflict exists which prevent the Mayor fromhe/she recuses himself / herself.

cc.

C^c

partialIy deciding the above styio-ma

Defendant has filed a written notice of appeal pursuant to R.C. 1905.23.

The case is transferred pursuant to R.C. 1905.032, (Mayor's option)

Prosecutor's Motion pursuant to Ohio Criminal Rule 7 to amend all charges to :

MH 114292

MH114292(Ticket Number)

434.010AI

432.080(Qrdinance H)

DLIIADRIVING WITHIN LANES/CONT, LANES

(Deseription of offenses)

er

PATROLMAN SWANSON,

(Officer)

is hearby granted.kThe clerk is hereby ordered to certify all original papers filed in the above-styled case and together with a

transcript of all proceedings, accrued costs and bond posted by Defendant, transfer this case to theBEREA.MUNI COURT for further proceedings in accordance with the law.

All further proceedings in this court are stayed,

Defendant is to appear in BEREA MUNI COURT on

Date t Mayor / 7u

** Denotes court date must be completed and defendant notified.

06/2.5/20041 09:01 2167740493

IN TIdE MIDDLEBURG IiEIGI^'I'S MAYOR'S COURTCUYAHOGA COiTt;l'I'X, OHIO

CITY OF MIDDLEBU,RG HEIGkITS,

Respectfu

Plaintiff, Magistrate Jeffrey Largent

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WILLIAM GLICK,

Defendant.

Now comes attorney Hector G. Mattinez, Jr., d

BROWNER HENDERSON PAGE 02/03

Co., L.F.A., and hereby enters his appearance as coun4el of record in the above-styled. case.

Flrrther, Defendant, `FJilliam G;ick, by and. through ersigned counsel, hereby enters a plea of

NOT GITILTY to the currently pending charges and requesl^s this matter be transferred to th.e

Berea Municipal Court for a Pre-Tria1. Hearing. Furth Ilr, Defendant hereby knowingly,

intelligently, and voluntarily waives his right to have a

er G. MaKlrrez. Jr.Co., L.P.A.

kCmmmj GG l.nv1

SIJPSRIOR AVE.. C-AST

rHE LE40ER FUILCnNSCVELANO. CN49114

*'w.,nc {2157 ^5.5555umll> 12161 ]]4•04%3

Case No:

NOTICE OF APPEARANCE OFCOUNSEL OF ItECORD;NOT GUILTY PLEA; REQ[JESTFOR PRE-TRIAL IiEARiNG;WAIVER OF STATUTORYSPEEDY TRIAL RIGHT

f the law firm of Hector G. Martinez, Jr.

trial. within the t7me provided by law,

Ily Submitted,

Nector Martinez, Jr., Esq.Sup. Ct. eg. #0068832AECTO G. MARTINEZ, JR. CO., L.RA.526 Supe ior Avenue, EastSuite 545^Clevel.a.. i

l r

'JH 44114(216) 875555Counsel Defendant

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BEREA MUNICIPAI, COURT

11 BEREA CONIlVlONS

BEREA, OH 44017

440-826-5860FAX: 440-234-2768

TRAFFIC/CRIMINAL RECEIPT

RECEIPT #: 2004307380 DATE POSTED: 09/03/2004

OPERATOR: SKRA 03:11 PMPAID BY: WILLIAM C GLICK

DEFENDANT: WILI.IAM C GLICK

-----------------------------------------° ° ----------------------------------CASE/TICKET DESCRIPTION AMT PAID04TRC03862 PAYMENT 434.O1A1 DUI COST/M OCCUP DR PRIV $45.00

-----------°-------------------------------------------------------------------TE:7DER: A14OUPIT TYPE

$100.00 CASH

BEGINNING BALANCE: $45.00AMOUNT PAID: $45.00AMOUNT CREDITED: $0.00ENDING BALANCE: $0.00P.MOUNT TENDERED: $100.00CASE BACK: $55.00

REFUND CHECK: $0.00

RCDD: 09/03/2004

0 OHIO BUREAU OF MOTOR VEHICLES

ALS COURT DISPOSITION NOTIFICATION

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SUBJECT NAME SOCIAL SECURITY NO DATE OF BIRTH DRIVER LICENSE NUMBERWILLIAM C GLICK 274-78-5553 08/16/1973 OH RM736776

ADDRESS CITY2082 CARABEL LAKEWOOD, OH 44107

RE: COURT CASE NUMBER DATE OF HEARING DATE OF OFFENSE04TRC03862 09/07/2004 0812212004

This matter came on for hearing on the date indicated above in reference to the suspension action in accordancewith the provisions of Section 4511.191 (H) (2) of the Ohio Revised Code.

[] The appellant appeal was granted in that the appellant proved that the Registrar committed error asfollows:

[] A. The officer did not have reasonable ground to believe that OMVI was committed before thetest.

B. The officer did not request the appellant to submit to the chemical test.C. The officer did not inform the appellant of the consequences of a refusal or of submitting to

the test.D. The appellant did not refuse the test. (refusal case)E. The test results did not indicate a prohibited concentration of alcohol. (positive test case)

[] Judicial Pre-trial suspension imposed. Please provide the following information:

DESCRIPTION OF OFFENSE DATE OF HEARING PLEA

Stay of Administrative License Suspension issued.The appeal was withdrawn by appellant.

(VT-Tbg appellant appeal was denied for failure to show error.[] Previous stay of ALS rescinded. ALS re-imposed. Suspension from until

Note: limited driving privileges granted if applicable.] Plea of Guilty or No Contest to OMVI after a refusal (O.R.C. 4511.191 (K)).

[] ALS terminated upon OMVI conviction $405.00 ALS fee required.[] Finding of Not Guilty of OMVI, O.R.C. 4511.19, or municipal OMVI, after a positive test result

(O.R.C. 4511.191 (H) (2) ).

BEREA 1821


CITY 4 DIGIT COURT CODE

CLERK COURTRAYMOND J WOHL

Prosecuting Attorney

Completion of this form pursuant to ORC.4511.191 (H)`(2) PLEASE MAIL FORM TO:OHIO BUREAU OF MOTOR VEHICLESATTN: ALSP0BOX16784

BMV 2261 9/97 COLUMBUS OH 43266-0084

^


11 BEREA COMONSBEREA OHIO 44017

SPECIAL DRIVERS PERMIT

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This will certify that : WILLIAM C GLICK

2082 CARABEL

LAIaWOOD, OH 44107

SSN: 274-78-5553

DOB:08/16/1973

CASE NO. 04TRC03862

EFFECTIVE DATE 09/22/2004

EXPIRATION DATE 08/22/2005

THIS SPECIAL DRIVING PERMIT IS ISSSUED SUBJECT TO ANY OTHER REQUIREMENTS AND/OR

RESTRICTIONS WHICH MAY BE IMPOSED BY THE BIIREAU OF MOTOR VEHICLES OF THE STATE.OF OHIO.

Privileges to drive to, from and for work purposes: A.G. FINANCIAL INC.,

AVE., LAKEWOOD, OHIO 44107, MON.- SUN.- 7:00AM TO 11:00PNa.16800 MADISON

This defendant is under suspension of his/her driving privileges for a period of 365days, beginning 08/22/2004 to and including 08/22!2005 except for the purpose or purposeslisted above.

[ X]Administrative License

[ ]Court Suspension

[ ]Pre-Trial Suspension

The foregoing permit is in lieu of operators license number OH RM736776 issued

to said WILLIAM C GLICK by the registrar of motor vehicles of the State of Ohio. Saidlicense is in the custody of the Bureau of Motor Vehicles, Columbus, Ohio

Given my hand and the official seal of the BEREA MUNICIPAL COURT this 09/07/2004.

JUDGE MARK C. COMSTOCK

*PLEASE REPORT ANY VIOLATIONS TO BEREA MUNICIPAL COURT*********

0

TBE STATE OF O.HIO Berea Municipal Court

Cit^f Middleburq Heights

z ,i/, ^. ^.Name

Addreas

ua.

Berea Cuyahoga County, Ohio(City) .

COMPLAINT No.BY INDIVIDUAL

(Rule 4)

►1M^MYY*►i+MM►^k►MMi^Y►/►ti^Ft^F^M►^Y►►►►^kiF^F^Y►^F^Y^WF►►^k^Ft^k►^YM.Y^k►^M►►rt►^YYY^Y

FORM I

^ /^ ^

Complainant being duly sworn states that //y i // 7^t^-^^(defendant) g .2 2 -o^/

at Middleburg Heights, Cuyahoga County, Ohio onorabout(place)

20 did operate a motor vehicle in willful or wanton(state the essential facts)

disregard for the safety of persons

inviolationof Middleburg Heights Code 434.02 Reckless Operation M-2(state the numerical designation of the anplicable statute or ordin

Complainant

Sworn to and subscribed before me by on

/,Z-% ,20e

raiu_ BER,EA MUNICN'AI

DEC o 9 2 004

^;i -'^CLERK OF COUk(

Judge-Clerk-Deputy Clerk-Municipal Courtor

Notarv Public

County/State of Ohio/

My Commission expires ?0 _ .

CR/FR-tE

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OHIO BUREAU OF MOTOR VEHICLES

ALS COURT DISPOSITION NOTIFICATION

SUBJECT NAME SOCIAL SECURITY NO DATE OF BIRTH DRIVER LICENSE NUMBERWILLIAM C GLICK 274-78-5553 D8/1"oi1973 OH RM736776

ADDRESS CITY4387 FAIRWAY CLEVELAND, OH 44135

RE: COURT CASE NUMBER DATE OF HEARING DATE OF OFFENSE04TRC03862 04/15/2005 08/22/2004

This matter came on for hearing on the date indicated above in reference to the suspension action in accordancewith the provisions of Section 4511.197 of the Ohio Revised Code.

[ X] The appellant's appeal was granted upon the court's determination of one or more of the followingconditions:

[ X] A. The arresting law enforcement officer did not have reasonable ground to believe that OVI violation or aviolation of O.R.C. 4511.194 (physical control) was committed before the test.

B. The officer did not request the appellant to submit to the chemical test.C. The officer did not inform the appellant of the consequences of a refusal or of submitfing to

the test.D. The appellant did not refuse the test. (refusal case)E. The test results did not indicate a prohibited concentration of alcohol. ( positive test case)

Judicial Pre-trial suspension imposed. Please provide the following information:

DESCRIPTION OF OFFENSE DATE OF HEARING PLEA

[1 Stay of Administrative License Suspension issued.[1 The appeal was withdrawn by appellant.[1 The appellant appeal was denied for failure to show error.I1 Previous stay of ALS rescinded. ALS re-imposed. Suspension from until

Note: limited driving privileges granted if applicable.[1 Plea of Guilty to OVI [4511.191 (B)(2) and (C)(2)].

[1 Conviction of OVI after a plea of no contest to OVI. [ O.R.C. 4511.191 ( B)(2) and (C)(2)]

[1 Finding of Not Guilty of OMVI, O.R.C. 4511.19, or municipal OMVI, after a positive test result(O.R.C. 4511.197 (D)

CLERAY

lLl ^^^,-,^J EDOC^fiÂ° YÂC1N IPAL COURT

1821

COURTBEREA MUNICIPAL COURT

CIT11BER

Pros

tA AU6 3 U 2005

cutlnÂ F^729,

Completion of this form pursuant to ORC.4511.197

BMV 2261 9/04

)E

PLEASE MAIL FORM TO:OHIO BUREAU OF MOTOR VEHICLESATTN: ALSP O BOX 16784COLUMBUS OH 43216-6784

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11 BEREA COMMONS

BEREA, OH 44017

440-826-5860

FAX: 440-234-2768

TRAFFIC/CRIMINAL RECEIPT

^ RECEIPT #: 2005302989 DATE POSTED: 04/15/2005

OPERATOR: EDIT 02:19 PM

^ PAID BY: WILLIAM C GLICK

DEFENDANT: WILLIAM C GLICK

--------------------------------------------------------------------------------

^ CASE/TICKET DESCRIPTION AMT PAID

04TRC03862 PAYMENT 434.02 RECKLESS OPERATION COST/COURT COSTS $60.OC

04TRC03862 PAYMENT 434.02 RECKLESS OPERATION COST/CHANGE OF PLEA $5.0C

/ 04TRC03862 PAYMENT 434.02 RECKLESS OPERATION COST/MOTION TO AMEND $75.0(

04TRC03862 PAYMENT 434.02 RECKLESS OPERATION COST/CONTINUANCE $10.OC

rr • 0C04TRC03862 PAYiENT 432.08A CONT. LPDTES/L•TF.aVING COST; COLTRT COSTS t .^`^T

, 04TRC03862 PAYMENT

04TRC03862 PAYMENT

04TRC03862 PAYMENT

04TRC03862 PAXMENT

04TRC03862 PAYMENT

04TRC03862 PAYMENT

04TRC03862 PAYZZNT

04TRC03862 PAYMENT

04muc03862 PAYMENT

04TRC03862 PAYMENT

04TRC03862 PAYMENT

434.02 RECKLESS OPERATION COST/BASIC PROSATION $125.0C

434.02 RECKLESS OPERATION COST/PRE-SENTENCING I $75.0(

434.02 RECKLESS OPERATION COST/COURT PROCESSING $2.0(

434.02 RECKLESS OPERATION COST/COMPUTER MAINT F $7.0(

434.02 RECKLESS OPERATION COST/COMPUTER RES FEE $3.0(

434.02 RECKLESS OPERATION COST/CONSTRUCTION FM $15.0(

432.08A CONT. LANES/WEAVING COST/COMPUTER MAINT $7.0(

432.08A CONT. LANES/WEAVING COST/COMPUTER RES F $3.0(

432.08A CONT. LANES/WEAVING COST/CONSTRUCTION F 515.0(432.OBA CONT. LANES/WEAVING COST/COURT PROCESSI $2.0(

434.02 RECKLESS OPERATION FINE/MH - FINES COLLE $450.0(

------------------------------------------------------------------------------TENDER: AMORJ'NT. TYPE

$910.00 CASH

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BEGINNING BALANCE: $910.01AMOUNT PAID: $910.01AMOUNT CREDITED: $0.01ENDING BALANCE: $0.01AMOUNT TENDERED: $910.01CASH BACK: $0.01REFUND CHECK: $0.a

I

BEREA MONICIPAL COURT

11 BEREA COMMONS

BEREA, OH 44017

440-826-5860

FAX: 440-234-2768

DISBURSE BOND RECEIPT

^ RECEIPT #: 2005302988 DATE POSTED: 04/15/2005

OPERATOR: EDIT 02:17 PM

^ PAID BY: WILLIAM C GLICK

„ DEFEI`7DANT: WILLIAM C GLICK-- --------------------------------------------------------------------------------

^ CASE/TICKET DESCRIPTION AMT PAID

04TRC03862 CREDIT COST(BOND FEE)(Bond applied) $5.0c04TRC03862 CREDIT COST(STATE REVENUE )(Bond applied) $15.0C

^,04TRC03862 CREDIT COST(VICTIMS OF CRI)(Bond applied) $9.OC

04TRC03862 CREDIT 434.02 COST(COURT COSTS)(Bond applied) $21.OC

I TENDER: AMOUNT TYPE

BEGINNING BALP.N'CE : $960.OCAMOUNT PAID: $0.OC

IAMOUNT CREDITED: $50,0(

ENDING BALANCE : $910,0C

ANSOTJNT TENDERED: $0.0(

I CASH BACK:

REFUND CHECK:

$0,OC$0, OC

I RCDD: 04/15/2005

^

^

I

II STATE OF OHIO

SS,uyahoga Countyl

RAì h!OP:i J. b'VOHL, CLE'riiBEREAMUNICIPALCOUR"

IN RFOR SAID COUNT

I

HEREBY CERTI FY THAT THE ABOVE AND FORGOIN3 TRULY TAKEN FROM THE ORiGINAL ENTRY NOW O,

')IF SAID COURTFOFFICE. WITNESS Pk^ ^4^JD AND

DAY O^"

I AYFAPN6T^^HC-- CâÂI<OFr(HJRr

^W ^ re c• ^

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_ ^cST

`l^YU-CJI-JU!_U

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

MICHAEL A. LINGO, etal. )

)Plaintiffs,

)vs. )

)STATE OF OHIO )

)Defendant. )

and

L4W OFFICES

BASHEIN uBASNFIN

CO.1 LP.A.

TENamiM4L ToW[p

_ - FLOOR

SD F11L:LIC $OU4NC

onlo «Iln

l"GIU1 77 1 .]235

DEPARTMENT OF TREASURY, STATE )OF OHIOcJo Jennette B. Bradley, Treasurer615 Superior Avenue NW, 12a' FloorCleveland, Ohio 44113

and

RAYMOND J. WOHL, CLERK OF THEBEREA MUNICIPAL COURT11 Berea ConunonsBerea, Ohio 44017

New Party Defendants.

CASE NO. 564761

JUDGE DICK AMBROSE

EXHIF3ll

FIRST AMENDED CLASS ACTIONCOMPLAINT FOR DECLARATORYJUDGMENT, INJUNCTION, ANDOTHER EOUITABLE RELIEF

COMPLAINT

Plaintiffs, Michael A. Lingo, Gregory B. Williams, and William C. Glick (hereinafter

collectively the "Named Plaintiffs"), hereby state as their First Amended Class Action

Complaint against Defendant, State of Ohio and New-Party Defendants, Department of

Treasury and Raymond J. Wohl, Clerk of the Berea Municipal Court, as follows:

`F'1'U-C.7^-JbCU p. _^

PARTIES

1. At all times herein relevant, the Named Plaintiffs were and are residents of

Cuyahoga County, Ohio.

2. At all times herein relevant, the State of Ohio was and is a governmental entity

that may be sued in a common pleas court under authority of R.C. §2743.03(A)(2) for a

declaratory judgment, injunction, or other equitable relief (including restitution and

disgorgement of improperly retained F.inds). Santos v. Ohio Bur. of Workers' Comp., 101 Ohio

St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, syllabus. New-Party Defendant, Department of

Treasury, was and is an instrumentality of the State of Ohio.

3. New-Party Defendant, Raymond J. Wohl, Clerk of the Berea Municipal Court,

is an elected govemmental offlicial responsibic for operating the offices of the clerk of his

respective municipal court in Cuyahoga County in accordance with the laws of the State of

Ohio.

LAW DFFICE5

BASHEIN 6 BASHEIN

CN.. L.P.A.

TEFwnINAL TOWEv

3.. - FLOOR

sD ?JnuC SOUFRE

..LCVE'^/.NfJONlO 44113

IlIEfJ)I-]2]9

BACKGROUND

4. At all times herein relevant, the State has established, funded, supported,

directed, and maintained a system of municipal, county, and mayor's courts (hereinafter

collectively the "statutory courts"). Unlike the courts that were created by Article IV of the

Ohio Constitution, statutory courts and their respective clerks exist solely by legislative decree

and may exercise only the authority that the General Assembly has granted to them. State v.

Cowan, 101 Ohio St.3d 372, 2004-Ohio-1583, 805 N.E.2d 1085 ¶ 11; Jacubenta v. Dunbar (8s'

Dist. 1964), 120 Ohio App. 249, 250, 198 N.E.2d 674, 675.

5. Ohio's statutory courts and their respective clerks are an instrumentality of, and

operate under the direction and control of, the state government. Foster v. Wa(sh (6`h :;i .

7

L_dw uepar:.menL 441J-CJ4-5bGt] P. o

198R), 864 F,2d 416, 418-419; Mumford v. Basinski (6's Cir. 1997), 105 F.3d 264, 268; Phelps

v. Coy (S.D. Ohio 2000), 164 F.Supp.2d 961, 976-977; Foy v. Hartfey (December 3, 2003),

U.S. Dist., N.D. Ohio, Case No. 1:02CV1357.

6. New-Party Defendants, Raymond J. Wohl, Clerk of the Berea Municipal Court,

as well as potentially other court clerks throughout-0hio, have been collecting court costs under

color ofright and authority ofthe State of Ohio and the respective municipalities in which they

serve. The costs collected by these agencies are funneled to the support of the respective

clerk's offices as well as their municipalities. Portions of these funds arc also transferred to

New-Party Defendant, Department ofTreasury, for the benefit of the State.

7. In RC. §2743. 70(A) and §2949.091(4) as well as other provisions of Ohio law,

the General Assembly has directed the statutory cour`Ls to colleat court costs in each "case"

involving a defendant who has been convicted of or has pled guilty to one or more offenses.

Some of the -funds are to be deposited directly by the clerks with the State Treasurer.

8. Most statutory courts and their clerks recognize that costs may be assessed only

once for each "case". Nevertheless, several statutory courts and their clerks have beqn

imposing costs for each offense charged against the defendant. No statutory authority exists for

this practice. As a result, numerous defendants have been assessed multiple costs for a single

case.

LAW OFFICES

SASHEIN & DA.°.HEIN

TERMINALIOWER

351- FLOOR

50 pU9LIC SOUARE

CLEVELANO. ON10 54113

Ii161 711-3'-39

9. The Ohio Attorney General, Lee Fisher, was asked by Cuyahoga County

Prosecutor Stephanie Tubbs Jones to examine the legality of this practice. In response, his

office issued Opinion No. 91-022 on April 16, 1991, a true and exact copy of which is

appcnded hereto as Exhibit A. The Attorney General concluded that:

3

uc:b uo uo 11 C`Ja L3W llepartmen`.. 44D-234-5628

Based upon the foregoing, it is my opinion, and you are herebyadvised that court costs imposed by R.C. 2743.70(A)(1) and R.C.2949.091(A)(1) are to be charged per case, and not per oPiense.

Id., p. 3.

8. A few months later, Attorney General Fisher was asked to revisit the issue by

the State Auditor, Thomas E. Ferguson, Opinion No. 91-039 was published on September 12,

1991, a true and exact copy of which is appended hereto as Exhibit B. I'he precise question

involved was whether municipal courts could assess costs per offense by manipulating the

numbers assigned to the case. The Attorney General re-affirmed his opinion that costs could

only be charged once for each case regardless of the number of misdemeanor offenses

involved. Id., p. 2. He then ruled that:

It is apparent from the foregoing that the Ohio Supreme Coucthas determined that when an individual is charged with more thanone misdemeanor arising from the same act, transaction, or seriesof acts or transactions, a municipal court or county court mayonly assign one case number to that criminal prosecution.Consequently, all the misdemeanors charged within that criminalprosecution are part of one case. The fact that courts may add anadditional identifier to each of the misdemeanors charged withinthat criminal prosecution, does not make each of themisdemeanors a "case."

Id., p. 3.

9. In direct contravention of the terms of the applicable statutes and the opinions of

the Ohio Attomey General, several statutory courts and their clerks are exceeding their

jurisdiction and authority by assessing court costs for each misdemeanor offense in a single

case.

10. In December 2004, Plaintiff, Michael A. L'nigo, was charged costs and fees of

LnW OFFICE5

®ASHEIN & BASHEIN

TCFMIN4LiOWEF

3Fi- iLOOR

50 PUDLIC SOUPRE

CL[V[L4rv0. ONIO ^14113

1216^7113^J9

approximately $204.50 by the Parma Municipal Court and its Clerk. Case No, 04TRC33., `.

4

l- .. V V UO 1 1: C._'ia Law llepartment 44U-^:;4-5[i^El

LAW OFYICES

3ASHEIN & 9ASHEIN

These costs were determined by the number of offenses that had been charged and not on the

basis of a single case.

11. In October 2004, Plaintiff, Gregory B. Williams, was charged costs and fees of

approximately $237.00 by the Rocky River Municipal Court and its Clerk. Case No.

04TRC08777. These costs were determined by the number of offenses that had been charged

and not on the basis of a single case.

12. In April 2005, Plaintiff, William C. Gliek, was charged costs and fees of

approximately $510.00 by the Berea Municipal Court and its Clerk. Case No. 04TRC03862.

These costs were determined by the number of offenses that had been charged and not on the

basis of a single case.

13. In the rnanner aforementioned, the Defendant and New-Party Defendants have

authorized, encouraged, and otherwise facilitated the assessment of improper court costs

against potentially thousands of Ohio traffic offenders. These costs include, but are not limited

to, those remitted to the State under the auspice ofR.C, ,¢2743.70(A) and §2949.091(A). The

Defendant and New-Party Defendants have benefited substantially from this illegal practice,

both directly and indirectly.

14, Unless this Court intervenes, the Defendant and New-Party Defendants will

continue to allow and facilitate this illegal practice indefinitely into the iuture.

CLASS ALLEGATIONS

15. Plaintiffs repeat and reallege the foregoing allegations of this pleading as if fully

restated herein.

16. This action is brought by the Named Plaintiffs, not only individually, but also :s

a class action on behalf of all othe; individuals who paid court costs on or after June 8, 19"s`5TEF^lanL TOWEe

cWOF

50 ppBL;_ SOVwRE

CLCVCL.^^'v. DM.Ip 4411J

LAW OFFICES

JASNEIN & BASHEIN

TEqMINFLIUwLN

3S•" °LOOF

GO pU9LIC SQIJAR!

^LEVEI.HkL, OHIO a4113

t'I57i13239

L_aw lieparzment 44U-E-a4-y62JU p . J

that were improperly calculated on the basis of the number of offenses charged in proceedings

before any Ohio municipal court, county court, or mayor's court (hereinafter collectively the

"Class").

17. The exact number of the members of the Class as herein identified and described

is not known, but it is estimated that there will be tens of thousands of individuals potentially

entitled to the relief sought herein. The Class is so numerous that joinder of individual

members herein is impractical.

18. There are common questions of law and fact in the action that relate to and

affect the rights of each member of Class and the relief sought is comtnon to the entire Class.

19. The claims of the Named Plaintiffs are typical of the claims of the Class in that

the claims of all members of the Class are governed by the same equitable and legal principles.

There is no conflict between the Named Plaintiffs and the members of Class with respect to this

action or with respect to the claims for relief as herein set fbrth.

20. The prosecution of separate actions by the individual members of the Class

would create a risk of delay, inconsistent or varying adjudications with respect to individual

members of the Class which would establish incompatible standards of conduct for the parties

opposing the Class, or adjudications with respect to individual members of the Class which

would as a practical matter be dispositive of the interest of the other members not parties to the

adjudications or substantially impair or impede their ability to protect their interests. The Class

is thereby certiffiable pursuant to Civ. R. 23(B)(I).

21. Defendant and New-Party Defendants have acted or refused to act on grounds

generally applicable to all the members of Class thereby malcing appropriate final injunctive

6

^ow uePar-tmenL •t'4U-G.74-abCtl P. 11.1

relief or corresponding declaratory relief with respect to the Class as a whole, The Class is

thereby certifiable pursuant to Civ. R. 23(B)(2).

22. The questions of law and fact common to the members of the Class predominate

over any questions affecting only individual members and a class action is superior to other

available methods for the fair and efficient adjudication of the controversy described herein.

The Class is therefore certifiable pursuant to Civ. R. 23(B)(3).

23. The undersigned attorneys are able to, and will, fairly and adequately protect the

interests of Class. The undersigned attotneys are experienced and capable in the field of

governmental class action litigation and have successfully represented claimants in other

lawsuits ofthis nature.

COUNT IDECLARATORY RELIEF

:AW OFFICE5

9ASH=IU & BASHEJN

^:..4.IN11 TOWER

FIOOR

+.:'URIIC SOUAFE

.^.6C':'='.-qNC. OHID 40113

. Iv. ^^t-]239

24. Plaintiffs hereby repeat and reallege the foregoing allegations of these pleadings

as if fully restated herein.

25. In the manner aforementioned, a live justicable controversy exists between the

parties to this action for which there is no readily available and expedient remedy at law or

equity. Declaratory relief is thus available in accordance with R. C. Chapter 2721.

26. The Named Plaintiffs and members of the Class are entitied to a declaratory

judgment against the Defendant and New-Party Defendants establishing that court costs may be

assessed by statutory courts and their clerks in accordance with the pertinent statutes and

regulations solely on a "per case" and not "per offense" basis.

27. The Named Plaintiffs and members of the Class are entitled to a declaratory

judgment establishing that court costs were improperly assessed against them by the statuo,ry

courts and their clerlcs that were and are unde- the directiou and control of the State.

7

u^l uo ub ii:Jua Law D ePartment 448-234-5628 c,.ll

LAW OFFICES

3FSHEIN & 6ASHEIN

CO., L.P.A.

lERMIrvAL TOV/ER

35- FLOOR

50 PVBLIC SOUARL

CLEVELAND, ORID 44113

i2.6I 17 1.32_s

28. The Named Plaintiffs and members of the Class are entitled to a declaratory

judgment establishing their right to a full refund of the court costs that were illegally assessed

against them by the statutory courts and their clerks under the direction and control of the State.

These costs include, but are not limited to, those remitted to the State under the auspice ofR. C.

§2743.70(A) and §2949.091(A). The Defendant and New-Party Defendants have benefited

substantially from this illegal practice, both directly and indirectly.

29. Tlhe Named Plaintiffs and Tie^iibers of the Class are entitled to such additional

declaratory relief as is necessary and appropriate to enforce their rights under Ohio law.

COUNTIIINdIINCTIVE RELIEF


restated herein,

31. By all appearances, the Defendant and New-Party Defenclants intend to continue

indefmitely to allow their instrumentalities, agencies, and other representatives to collect court

costs on a "per offense" basis without appropriate authorization under Ohio law. These costs

include, but are not limited to, those remitted to the State under the auspice of R.C,



32. Countless traffic offenders in Ohio will continue to be overcharged court costs

in violatior of trieir legal rights unless injunctive rclief is granted.

33. Because the practice that the Defendant and New-Party Defendants are

facilitating is widespread and the individual amounts involved are small and difficult to

recover, continued violations of the applicable statutes and regulations will result in grave and

irreparable harm to numerous individuals in Ohio.

8

L-aw uepar`cment 'P4LI-L!J4-5kic! H F,. 1=

34. In the manner aforementioned, preliminary and permanent injunctive relief is

warranted against the Defendant and New-Party Defendants to prevent any further violations of

the rights afforded to individuals with respect to the assessment of court costs by statutory

courts.

COUNT IIIEOUITABLE RELIEF

_nw OFFICES

3ASHEtrv S BnSHEIN

THL^.;I!^qL rOWER


restated herein.

36. In the manner aforementioned, the Defendant and New-Party Defendants havc

been unjustly enriched to the detriment of the Named Plaintiffs and members of the Class. By

authorizing, promoting, and otherwise facilitating the illegal collection of court costs on a`Lper

offense" basis through its statutory courts, the Defendant and New-Party Defendants have

unjustly profited at the expense ofthe Named Plaintiffs and members ofthe Class. These costs

include, but are not limited to, those remitted to the State under the auspice of R.C.



37. Under traditional principles of equity, the Defendant and New-Party Defendants

must be required to follow the law. Any funds or profits derived from illegal or improper

activities should be returned without further delay. Judy v. Ohio Bur. of Motor Vehicles, 100

Ohio S!t.3d 122, 2003-Ohio-5277, 797 N.E.2d 45; Santos, 101 Ohio St.3d 74.

38. Based upon traditional principles of equity, including the doctrine ofrestitution,

the Named Plaintiffs and members of the Class are entitled to a disgorgement of all of the court

costs that were assessed illegally and improperly through or by Defsndant and/or the NevI.-

Party Defendants.

50 =d.a.1[: 5001pE

]LEV£..a¢0, OHIO 44112

•.. 711-3i34

-rroLe c.3t-JUCo

Lcw Os'vICES

345MEIN & BA5HEIN

CO., L.P.A.

TERMINAL TOWLn

3v^'I ROOR

50 FVBLI.", SOVARE

CLEVEIPNO. OMIO 84113

t21^3) l/13^34

PRAYER

WHEREFORE, the Named Plaintiffs, individually and on behalf of the Class herein

identified, hereby demand a judgment against the Defendant and New-Party Defendants, jointly

and severally, awarding (1) full and complete declaratory relief, (2) an injunction against

further violations of their legal rights, and (3) disgorgement of the funds improperly collected

in accordance with principles of equity. Such additional declaratory, injunctive, or equitable

relief as deemed necessary and appropriate by this Court is also requested. Legal fees,

administration and litigation expenses, and interest should further be imposed as is appropriate

for class action proceedings under Civ.R 23. Costs should be taxed to the Defendant and New-

Party Defendants.

Respectfully submitted,

W.W. Craig Bashein, Esq. (#0034591)BASHEIN & BASHEIN CO., L.P.A.Ternrinal Tower, 35i6 Floor50 Public SquareCleveland, Ohio 441 1 3-22 1 6(216) 771-3239FAX: (216) 771-5876cbashein n basheinlaw.com

FYAN1.kiC^ti1.1.7A.tCCAi III (per authority)

Frank Gallucci, III, Esq. (#0072680)Leon M. Plevin, III, Esq. (#0008631)PLEVIN & GALLUCCI55 Public Square, Suite 2222Cleveland, Ohio 44113(216) 861-0804FAX: (216) 861-5322

Attomeys for Plaintiffs

10

Paul W. Flowers, Esq. (#0046625)PAUL W. FLOWERS CO., L.P.A.Terminal Tower, 35a' Floor50 Public SquareCleveland, Ohio 44113(216) 3449393FAX: (216) 344-9395pwgpwfco.com

1991 Ohio Op. Atty. Gen. r'age 31991 Ohio Op. Atty. Gen. 2-116, 1991 Ohio Op. Atty. Gen. No. 91-022, 1991 WL

576699 (Ohio A.G.)

(Cite as: 1991 WL 576699 (Ohio A.G.))

and witnesses; to promptly bring to trial those accused of a crime; and to minimizethe possibility of incongruous results that can occur in successive trials before

different juries"). Hence, it is a commonly acknowledged and statutorily recognized

practice to consolidate two or rnore offenses charged against a person into one

case,

*3 It, therefore, is readily apparent that the General Assembly was cognizant ofthe fact that situations would arise in which a person would be convicted of or

plead guilty to more than one offense in a case when it enacted R.C. 2743.70 and

R.C. 2949.091. See generally State v. Frost, 57 Ohio St. 2d 121, 125, 387 N.E.2d235, 238 (1979)("(i]t is axiomatic that it will be assumed that the General

Assembly has knowledge .of prior legislation when it enacts subsequent

legislation"); In re Estate of Tonsic, 13 Ohio App. 2d 195, 197, 235 N.E.2d 239,

241 (Summit County 1968) ("[t]he Legislature is presumed to be cognizarit of allprior sections of the Code"); East Ohio Gas Co. v. Akron, 2 Ohio App. 2d 267, 270,207 N.E.2d 780, 783 (Summit County 1965) ("[i]n the interpretation of atatutes, it

is presumed that the Legislature knew the state of the law at the time of

enactment, and it must bepresumed that the Legislature knew of the so-called pre-emption doctrine as it had been developed over the years in this state"), aff'd, 7

Ohio St. 2d 73, 218 N.E.2d 606 (1966).

Aware of thiscommon practice, the General Assembly made no attempt, through the

language of- R.C. 2743.70 and R.C. 2949.091, to indicate that the costs mandated bythese sections wereconditioned upon the number of offenses of which a person was

convicted or to which he plead guilty in a single case. Rather, language set forthin these sections indicates the contrary. For example, both R.C. 2743.70(C) and

R.C. 2949.091(C) limit the costs to be imposed pursuarit to R.C. 2743.70 and R.C.2949.091. R.C. 2743.70(C) states that "(n]o person shall be placed or held in jail

for failing.to pay the additional twenty or six dollars court costs. . . that arerequired to be paid by this section." R.C. 2949.091(C) provides "(n]o person shall

be placed or held in a detention facility for failing to pay the additional ten

dollars court costs. ..that are required to be paid by this section." The language

of R.C.2743.70(C) and R.C. 2949.091(C), thus, indicates that the costs imposed by

these sections is limited in any case to twenty or six dollars, and ten dollars,respectively. See generallyBrown v. Martinelli, 66 Ohio St. 2d 45, 50, 419 N.E.2d

1081, 1084 (1981) (it is a"basic presumption in statutory construction that the

General Assembly is not presumed to do a vain or useless thing, and that whenlanguage is inserted in a statute it is inserted to accomplish some definite

purpose"' (quoting State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio.St.

476, 479, 159 N.E. 756, 759 (1959))).

Based upon the foregoing, it is my opinion, and you are hereby advised that the

court costs imposed by R.C. 2743.70(A)(1) and R.C. 2949.091(A)(1) are to be charged

per case, and not per offense.

Respectfully,

Lee Fisher

Attorney General

[FAT1] I note that R.C. 2743.70(A) (2) and R.C. 2949.091(A) (2) require a juvenile

court to impose a specific sum of money as costs against a child found to be adelLnquent child or a juvenile traffic offender for an act which, if committed by

an adult, would be an offense other than a traffic offense that is nota moving

^o.c. .. .-.......`-^ 2005 Thomon/West. No i;lain: :o G_,iu. U.S.

EXHIBIT

t;

P 1%: 01


MICHAEL A. LINGO, et al.

Plaintiffs,

vs.

STATE OF OHIO,

Defendant.

CASE NO. CV 05 564761

JUDGE AMBROSE

ANSWER TO THE FIRST AMENDEDCLASS ACTION COMPLAINT FORDECLARATORY JUDGMENT,INJUNCTION, AND OTHEREQUITABLE RELIEF

Defendant, Raymond J. Wohl, Clerlc of Court of the Berea Municipal Court, by and

through undersigned counsel, for his Answer to the First Amended Class Action Complaint for

Declaratory Judgment, Injunction, and Other Equitable Relief (hereinafter, the "Amended

Complaint"), states as.follows:

PARTIES

1. Defendant denies the allegations of paragraph 1 of the Amended Complaint for

lack of knowledge or information sufficient to form a belief as to the truth of the matter asserted.

2. Defendant admits that the State of Ohio was and is a governmental entity that may

be sued in a common pleas court, that the statutes and case law speak for themselves and are the

best evidence of their contents, that the Department of Treasury is an executive agency of the

State of Ohio, and denies the remaining allegations of paragraph 2 of the Amended Complaint.

3. Defendant admits that he is an elected governmental official responsible for

operating the offices of the clerk of court of the Berea Municipal Court in Cuyahoga County :n

accordance with the laws of the State of Ohio and denies the remaining allegations of paragraph

3 of the Amended Complaint.

BACKGROUND

4. Defendant admits that the State of Ohio, through the General Assembly and

Chapter 1901 of the Ohio Revised Code, established Ohio's statutory courts, that the State of

Ohio provides funds and support to the statutory courts, that the statutes and case law speak for

themselves and are the best evidence of their contents, that the statutory courts and their

respective clerlcs exist solely by legislative act, and denies the remaining allegations of paragraph

4 of the Amended Complaint.

5. Defendant admits that Ohio's statutory courts and their respective clerks are an

instrumentality of, and operate under the direction of, the state government, that the case law

speaks for itself and is the best evidence of its contents, and denies the remaining allegations of

paragraph 5 of the Amended Complaint.

6. Defendant adinits that his office has collected court costs under authority of the

State of Ohio and Journal Entry and Order of the Berea Municipal Court, that some of the court

costs are transmitted to the Department of Treasury of the State of Ohio for the benefit of certain

funds established by legislative act, that a portion of said costs are transmitted to support Berea

Municipal Court, and denies the remaining allegations of paragraph 6 of the Amended

Cornplaint.

7. Defendant admits that R.C. §2743.70(A) and R.C. §2949.091(A) directs statutory

courts to collect court costs, in addition to any other court costs that the court is required by law

to impose, in each case involving a defendant who has been convicted of or has pled guilty to

one or more offense set forth in each statute, that the statutes speak for themselves and ai-e the

best evidence of their contents, that the funds collected pursuant to each statute are transmitted

by the cleric to the Department of Treasury of the State of Ohio, and denies the remaining

allegations of paragraph 7 of the Amended Complaint.

8. Defendant admits that numerous defendants have been assessed costs for each

offense charged against such Defendant pursuant to R.C. § 1901.26, and denies the allegations of

paragraph 8 of the Amended Complaint for lack of information or lcnowledge as to what other

statutory courts and their clerks recognize and how other courts and their clerlcs impose costs,

and denies the remaining allegations ofparab aph 8 oftlie Amended Complaint.

9. Defendant admits that the former Ohio Attor-ney General, Lee Fisher, was asked

by Cuyahoga County Prosecutor Stephai-iie Tubbs Jones, for an opinion regarding the assessment

of court costs pursuant to R.C. §2743.70 and R.C. §2949.091, that Opinion No. 91-022 was

issued on April 16, 1991, a true and accurate copy of which is attached to the Amended

Complaint, which Opinion spealcs for itself and is the best evidence of its contents, and denies

the remaining allegations of paragraph 9 of the Amended Complaint.

10. Defendant admits that Attorney General Fisher was aslced to render an opinion

regarding the assessment of court costs pursuant to R.C. §2743.70 and R.C. §2949.091, that

Opinion No. 91-039 was issued on September 12, 1991, a true and accurate copy of which is

attached to the Amended Complaint, which Opinion spealcs for itself and is the best evidence of

its contents, and denies the remaining allegations of paragraph 10 (which paragraph is

mistalcenlv designated as paragraph 8) of the Amended Complaint, which paragraph and all

subsequent paragraphs are mistalcenly numbered.

I^ ^

11. Defendant denies the allegations of paragraph 11 (which paragrapti is-mistalcenly

designated as paragraph 9) of the Amended Complaint for lack of laiowledge or infonnation

sufficient to form a belief as to the h-utli of the matter asserted.

12. Defendant denies the allegations of paragraph 12 (which paragraph is mistakenly

designated as paragraph 10) of the Ameiided Complaint for lack of Icnowledge or infonnation

sufficient to fonn a belief as to the truth of the matter asserted.

13. Defendant denies the allegations of paragraph 13 (which paragraph is mistalcenly

designated as paragraph 11) of the Amended Complaint for lack of lrnowledge or information

sufficient to form a belief as to the truth of the matter asserted.

14. Defendant admits that in April 2005, Plaintiff, William C. Gliclc was charged

court costs and fees pursuant to a guilty plea to Reckless Operation and was charged costs of

$510 by the Berea Municipal Court, that some of the costs were assessed based on the number of

offenses that had been charged pursuant to a Joumal Entry and Order of Court and Ohio Revised

Code §1901.26, and denies the remaining allegations of paragraph 13 (which paragraph is

mistalcenly designated as paragraph 12) of the Amended Complaint.

15. Defendant denies the allegations of paragraph 15 (whicli paragraph is mistakenly

designated as paragraph 13) of the Amended Complaint.



CLASS ALLEGATIONS

17. Defendant repeats and restates the admissions, denials and other avennents set

forth in paragraphs 1 through 16 as if fully rewritten herein.

4

18. Defendant admits that this action is brought by the named plaintiffs individually

and purportedly as a class action but denies the remaining allegations of paragraph 18 (which

paragraph is mistakenly designated as paragraph 16) of the Amended Complaint.











24. Defendait denies the allegations of paragraph 24 (which paragraph is mistalcenly




COUNTIIDECLARATORY RELIEF

26. Defendant repeats and restates the admissions, denials and other averments set

forth in paragraphs 1 tlu-ough 25 as if fully rewritten herein.



5









COUNT IIIN.TUNCTIVE RELIEF

32. Defendant repeats and restates the adinissions, denials and other avennents set

foith in paragraphs I through 31 as if fully rewritten herein.

33. Defendant adinits that he will continue to collect court costs pursuant to

applicable Ohio law and Berea Municipal Court Judgment Entry and Court Orders but deny the

remaining allegations of paragraph 33 (which paragraph is mistalcenly designated as paragraph

31) of the Amended Complaint.






designated as paragraph 24) of the Amended Co nplaint.

6

COUNT IIIEQUITABLE RELIEF

37. Defendant repeats and restates the admissions, denials and other avennents set

forth in paragraphs 1 tlu-ough 36 as if fully rewritten herein.

38. Defendant denies tlae allegations of paragraph 38 (which paragraph is mistakenly

designated as paragraph 36) of the Amended Coinplaint.

39. Defendant admits that he must follow the law but denies the remaining allegations

of paragraph 39 (which paragraph is mistalcenly designated as paragraph 37) of the Amended

Complaint.



AFFIRMATIVE DEFENSES

1. Plaintiffs' Amended Complaint fails to state a claim upon which relief can be

granted.

2. Plaintiffs' Amended Complaint is barred by Ohio Revised Code § 1901.26.

3. Plaintiffs' Amended Complaint is frivolous as that term is defined in Ohio

Revised Code §2323.51.

4. Plaintiffs' Amended Coinplaint is baned by their prior convictions as is set

forth in the Aanended Complaint.

5. Plaintiffs' Amended Complaint is barred by the doctiine of res judicata andlor

collateral estoppel.

6: Plaintiffs' Amended Complaint is barred by the doctrine of accord and

satisfaction.

7. Plaintiffs' Aniended Complaint is bal-red by payment and release.

7

8. Plaintiffs' Amended Complaint is barred by the doctrine of waiver.

9. Plaintiffs' Amended Complaint is barred by the applicable statute of

limitations.

10. Plaintiffs' Amended Complaint is barred by the doctrine of laches.

11. Plaintiffs had, and purported future class members have, adequate reniedies at

law including, but not necessarily limited to, the right to appeal a criminal conviction

including the assessment of court costs.

12. Plaintiffs' damages, if any, are proximately caused by their own negligence,

comparative negligence, and/or by their own illegal and/or criminal conduct.

13. This answering defendant is immune from liability pursuant to the doctrine of

judicial immunity.

14. This answering defendant is iminune from liability pursuant to the doctrine of

govennnental imrnunity.

15. Plaintiffs have failed to name necessary and indispensable parties puisuant to

Ohio Civ. R. 19 and 19.1.

16. Defendant reserves the right to raise additional affirmative defenses upon

completion of discovery.

WHEREFORE, Defendant demands that the Amended Complaint be dismissed, with

prejudice, at Plaintiffs' cost and expense and that Defendant recover from Plaintiffs his costs and

expenses, including reasonable atto.^.:ey fees pursuant to Ohio Revised Code §2323.51, and any

other ]egal or equitable relief which this Court deems just and appropriate.

8

Respectfully submitted,

David M. Cuppage (0047104)d ncupp(c^,c•limacolaw. corn

Scott D. Simpkins (0066775)sdsim»Zclimacolaw , com

Climaco, Leflcowitz, Peca, Wilcox& Garofoli Co., L.P.A.

1220 Huron Road, Suite 1000Cleveland, Ohio 44115Telephone (216) 621-8484Facsimile (216) 771-1632

Gregory M. Sponseller (0012350)Director of LawCity of BereaBerea City Hall11 Berea CommonsBerea, Ohio 44017Telephone: (440) 826-5800

Attomeys for Defendant Raymond J. Wohl, Clerlcof Court of the Berea Municipal Court

9

CERTIFICATE OF SERVICE

A copy of the foregoing Answer has been sent via regular U.S. mail this

of November, 2006, upon the following:

W. Craig Bashein, Esq.Bashein & Bashein Co., L.P.A.Temiinal Tower, 35th Floor50 Public SquareCleveland, Ohio 44113-2216

Attorneys for Plaintiffs

Paul W. Flowers, Esq.Paul W. Flowers Co., L.P.A.Terminal Tower, 35"' Floor50 Public SquareCleveland, Ohio 44113-2216

Attornevsfor Plairitiffs

Frank Gallucei, III, Esq.Plevin & Gallucci55 Public Square, Suiie 2222Cleveland, Ohio 44113

Attorneys for Plaintiffs

Frank M. Strigari, Esq.Assistant Attorney GeneralConstitutioiial Offices Section30 East Broad Street, 17`h floorColumbus, Ohio 43215-3428

Attorney for DefendantsDepartment of Treasury State of Ohioand State of Ohio

10

IN THE COURT OF C'OMN'ION PLEASCUYAHOGA COUNTY, OHIO

IVIICHAEL A. LINGO, et al. ) CASE NO. CV 05 564761

Plaintiffs, ) JUDGE AMBROSE

vs. J DEFENDANT'S, RAYMOND J. WOHL,CLERIC OF COURT OF TIIE BEREA

STATE OF OHIO, et a?. ) MUNICIPAL COURT, MOTION FORSUMMARY JUDGMENT

Defendants. )

Defendant, Raymond J. 'V'Y'ohl, Clerlc of Co n-t of tlie Berea Mitnicipal Court, by and

throueh m dcrsigned counsel, hereby moves this Court for an order, pmsuant to Rule 56(C) of

the Ohio Rules of Civil Procedure, granting summaryjudgment in bis favor and against Plaintiffs

on the First Amended Class Action Complaint for Declaratory .Iudgment, Injtnlction, and Otlier

Equitable Relief (hereinafter, the "Amended Complaint°). Defeidant states that there are no

genuine issues of niaterial fact. A bt-ief in support is attached hereto as if fttlly rewritten.

Respee^ully submitted,, e

^ I I ^d-^

Davt V: Cuppage (004 104dmcuppn climacol aw. c•ona

Scott D. Simplcins (0066775)sdsinan `a.cl.inaacolaw. corn

Climaco, Leflcowitz, Peca, Wilcox& Garofoli Co., L.P.A.


Gregory M. Sponseller (0012350)Director of LawCity of BereaBerea CityHall11 Berea CommonsBerea, Ohio 44017Teleplione: (440) 826-5800

Attorneys for Defendant Raymond J. Wohl, Clerkof Court of the Berea Municipal Court


MICHAEL A. LINGO, et al. ) CASE NO. CV 05 564761

)Plaintiffs, ) JUDGE AMBROSE

)vs. ) BRIEF IN SUPPORT OF MOTION FOR

) SUMMARY JUDGMENTSTATE OF OHIO, )

)Defendant. )

1. INTRODUCTION

In iliis purported class action, Plaintiffs collectively attempt to re-litigate the cost of their

prior misdeeds arxd shift the cost of operating a municipal court from those who are more

culpable to those who bear less culpability. Moreover, Plaintiffs ask this Court to re-write Ohio

statutory law regarding the imposition of court costs and grant them a refimd effectively setting

aside a poi-tion of their prior criminal convictions.

For instances, on August 22, 2004, Plaintiff Williani Glick was caught while driving

under the influence. He was charged with one count of driving under the influence and one count

of lanes violations. Mr. Glick retained an attorney and, with assistance of counsel, negotiated a

plea agreement wherein the driving under the influence charge was reduced to a reckless

operation charge and the lanes violation charge was dismissed. Having been given the

opportunity to accept responsibility for the less serious traffic offense violation of reckless

operation (and less points against his driving record), Mr. Glick willingly accepted the plea

Mr. Glick willingly accepted the sentence imposed by Berea Municipal Court Judge Mark A.

Comstock and paid the fines and court costs assessed against him.

In this purported class action, Mr. Glick initially claimed that he was wrongfLdly assessed

statutory court costs for the state victim's of crime fimd and the state's revenue fund on a per

charge basis. After his attonieys conducted discovery, Mr. Glick and his attornevs must now

realize that he was not charged court costs for these state funds on a per charge basis. Now, in

this Amended Conzplaint, Mr. Glick is collaterally attacking the assessment of cotu-t costs against

him claiming that he should not have been assessed other court costs on a per charue basis.

Rather, he claims that he should have been assessed court costs based on the fact that only one

case was filed against him. Ohio statutory law, however, pennits municipal court clerlcs to

charge court costs (other than the victim's of crimes fund and the general revenue fund) on a pe -

char;e basis. Mr. Gliclc, thus, improperly requests this Court to re-write Ohio statutory law.

There is no reason, and there can be no reason, why this Com-t should re-write Ohio

statutory law to accommodate Plaintiffs in their attempt to re-litigate their prior traffic offenses.

This Court should not shift the cost of operatin0 a municipal court frotn those who find

themselves charged with more than one criminal or traffic offense, such as Mr. Gliclc, to those

who have been charged with only one offense. In other words, Mr. Glick, who was charged with

driving under the influence and lanes violations, should not be treated similarly to any other

individual who may have been charged with only a lanes violation offense. Clearly, the more

serious offenses atid charges have 5reatcr costs of administration and should result in more costs

assessed.

Summaryjudgment is entirely appropriate to end this baseless and frivolous liti-ation.

^

II. STATEMENT OF CASE

Plaintiffs, Michael A. Lingo, Gregory B. Williams, and William C. Glick (hereinafter

"Plaintiffs") have filed a First Amended Class Action Complaint for Declaratory Judgment,

Injimction, and Other Equitable Relief a.-ainst the State of Ohio and new-party defendants,

Department of Treasury and Raymond J. Wohl, Clerlc of the Berea Municipal Court. Plaintiffs

allege that "[i]n R.C. §2743.70(A) and §2949.091(A) as well as other provisioIts of Ohio lativ/,

the General Assembly has directed the statutory courts to collect court costs in each `case'

involving a defendant who has been convicted of or has plead guilty to one or more offenses.

Some of the fimds are to be deposited directly by the clerl<s with the State Treasure." See

Amended Complaint, ¶ 7. Plaintiffs fm'ther allege that while most statutoiy courts and their

clerks recognize that "costs"2 may be assessed only once for each "case," "several statutory

courts and their clerks have been imposing costs for each offense charged against the defendant."

Icl., at 91 20. Continuin;, Plaintiffs mistal.enly (or confitsingly) alleged that "[n]o statutory

authority exists for this practice. As a result, numerous defendants have been assessed multiple

costs for a single case." Id.

Following a guilty plea to reckless operation of a motor vehicle, Plaintiff Glick was

charged with costs and fees of approximately $510.00 by the Berea Municipal Court. See

Amended Complaint, IJ12. Plaintiffs allege that Defendant Wohl has authorized, encouraged,

and otherwise facilitated the assessment of improper court "costs" against potentially thousands

of Ohio traffic offenders. Id., at 411113. According to the Amended Complaint, those "costs

include, but are not limited to, those remitted to the State under the auspice of R.C. §2743.70(A)

and §2949.091(A)." Id.

' hiiportantly, Plaintiffs do not identify what other provisions of Ohio law they refer to.2 As will be discussed herein, throughout their Amended Complaint, Plaintiffs attempt to confuse the issue and,therefore, do not identify which statutory court "costs" they are referring to.

Plaintiffs' Amended Complaint seeks a declaratory judgment establishing their right to a

fccll refund of the court costs that they we -e assessed as a result of their convictions in municipal

court nicluding costs assessed and paid pursuant to R.C. §2743.70(A) and §2949.091(A). See

Amended Cornplaint Count One. Plaintiffs also seek injunctive relief to enjoin the Defcndants,

includinj Defendant Wohl, from further violations of the rights afforded to individuals with

respect to the assessment of court costs by statutory courts. See Amended Complaint, Count

Two. Fiually, Plaintiffs seek equitable relief, under traditional principles of eouity, including the

doctrine of restitution, requiring defendants to disgorge all coLU-t costs that were assessed

illegally and improperly. See Amended Complaint, Count Tlu-ee.

Because there are no material issues of fact that Defendant Wohl calculates and collects

court costs pursuant to the Ohio revised code and cottrt order, Defendant Wohl is entitled to

summary judgment.

III. STATEVIENT OF FACTS

Defendant Woni was elected as the Clerk of Court for the Berea Municipal Court in

1993. See Affidavit of Raytnond J. Wohl attached hereto at Tab 1. Pursuant to the Ohio revised

code, Defendant Wohl serves a six year term. Icl. The Berea Municipal Court has jtu-isdiction

over the couununities of Berea, Brook Park, Middleburg Heights, Olmsted Falls, Olrnsted

Township, Strongsville, the MetroParks, and the Ohio State Patrol. Id. The Clerk of Cout-ts office

is made up of the following departments: Traffic/Criminal Division; civil; and small claims. Icl.

Colleen Coyne is the Traffic/Criminal Department Supervisor. Id.

The Berea Municipal Court is funded in part from imposition of court costs assessed

a^ainst defendants in traffic/criminal, civil and small claims court. See Affidavit of Wolil.

Depending on the costs being assessed and collected, the Clerk then disburses those funds to the

4

General Fund of the City of Berea, other funds within the City of Berea, Cuyahoga Countyor the

State of Ohio. Icl. Monies disbursed to the City of Berea are used to pay operating expenses of

the Berea Municipal Court including payment of salaries, benefits, and Qeneral administrative

expenses necessary for operation of the Municipal Co u-t. Ict. In sum, Berea Municipal Court

expenditures typically exceed disbursements to the Qeneral fund of the Citv of Berea.: Id.

Shortages are made up from disbursements from oth.er funds within the City of Berea. Icl.

Basic court costs pursuant to Ohio R.C. §1901.26(A) are established pursuant to a Joun7al

Entry and Court Order signed by the duly elected Berea Mtmicipal Court: Judge and the duly

elected Clerk of Court. See Affidavit of Wohl. Basiccourt costs are published by the Clerk on a

poster board which is maintained in a conspicuous location within the filina area of the Clerk of

Courts and is viewable by the public. Id.

In every criminal and/or traffic case resolved in the Berea Mttnicipal Court where a

Defendant is found guilty of one or more charges tuising out of the same incident, transaction or

occurrence, such defendant is assessed only one $15.00 charge for the State Reveiiue Fund and

only one $9.00 charge for the State Victims of Crime Fuid reeardless of the number of charges

issued against such Defendant and regardless of the number of charges to which the Defendant

was found guilty, so long as all such charges arose out of the saine ineident, transaction or

occurrence. See Affidavit of Colleen Coyne, ¶ 6, attached hereto at Tab 2. It has never been the

practice of the Berea Municipal Court Clerk of Court to charge any Defendant more than once

per case with the $15.00 fee mandated under Ohio Revised Code §2949.091(A) or the $9.00 fee

mandated under Ohio Revised Code §2743.70(A). Icl., at 117.

Plaintiff Williani C. Glick, in Berea Municipal Court case mm-nber 04 TRC 03862, had

two traffic charges, Lanes Violation and OVI, arising from the same incident. Mr. Glick pled

auilty to an amended charge of Reckless Operation with the original two charges being

dismissed at his cost. See Coyne Affidavit, 112-3. Mr. Glick paid a fine and court costs upon

conviction. Mr. Glick was charged court costs that included only one assessnzent of costs for

$15.00 allocated to the State Revenue Fund and one assessment of costs for $9.00 allocated to

the State Victims of Crime Fund per Oliio Revised Code §2949.091(A) and §2743.70(A),

respectively. Icl., at ¶ 4-5.

IV. LAW AND ARGUMENT

A. STANDARD OF REVIEW

Rule 56(c) of the Ohio Rules of Civil Procedure states in part as follows:

Summary Judgment shall be rendered forthwith if the pleadings,depositions, answers to interroQatories, written admissions,affidavits, written stipulations of fact, if any, timely filed in theaction show that there is rio genuine issue as to cnzv rnateria,.' factcmd that the moving party is entitled to judgment as a matter oflaw. (Emphasis added).

Continuing, the Rule states the standard forjudicial application:

A sununary judginent shall not be rendered unless it appears $om

such evidence or stipulation and only therefrom, that reasoncableniinds can come to but one conclusion and that conclirsion isadverse to the par.ty against whona the motion for summarl"

judgment is nxade, such party being entitled to have the evidence orstipulation construed most strongly in his favor. (Emphasis added)

Sumnlary judgment is a procedural device used to expeditiously and economically

dispose of legal claims which have no factual fotmdation. Celoteti Co p. v. Catr-ett, 477 U.S.

317,327 (1986); Mtnphy v. Reynolc.lsbz.trg, 65 Ohio St. 3d 356, 358 (1992). Underpinning this

device is the belief that litigation should be promptly terminated whenever there is nothing to try.

Norris v. Ohio Std. Oil Co., 70 Ohio St. 2d 1, 1(1982).

6

The burden of establishing that no genuine issue as to any material fact reinains to be

litigated is on the party moving for summary judgment. Turner r. Turner, 67 Ohio St. 3d 337,

340 (1993). Once a party lias moved for summary judgment and has supported his or her motion

by sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to

respond by affidavit or as provided in Civ. R. 56(C), setting forth specific facts explaining that a

genuine issue of material fact exists for trial. Jaclcson v. Alert Fire Sqfety Eqirip., Inc., 58 Ohio

St. 3d. 48, 52 (1991). A motion for summary judgment forces the non-moving party to produce

evidencg on all issues for which that party bears the burden of production at trial. Wing v.

An.ehor Nledici, Ltd. of Texcis, 59 Ohio St. 3d 108 (1991), paragraph three of syllabus.

B. THIS CLASS ACTION IS BARRED BY RES JUDICATA

The class action should be dismissed because the claims allcQcd are barred by the

doctrine of res judicata. All the class representatives in this matter were adjudicated guilty for

the offeises fo- which thev initially appeared in cottrt. This is true for William Glick, the class

representative wliose appearance in Berea Municipal Court is the basis for the Berea Clerk's

appearance in this matter. See Affidavit of Colleen Coyne, sarpra. Such an adjudication of guilt

is a final determination based on the merits of the original case in Berea MLmicipal Court. Yet

the same offenses which were the subject matter of Glick's prior adjudication are exactly the

same offenses upon which this class action is based.

Ohio Revised Code §2947.23 clearly mandates the imposition of court costs and the cost

of prosecution as part of the sentence of conviction. R.C. §2947.23(A)(1) provides, in pet-tinent

part:

In all criminal cases, including violations of ordinances, the judge or magistrateshall include in the sentence the costs of prosecution and render a judgment

against the defendant for such costs.

7

The imposition of court costs is required by R.C. §2947.23. State >>. l47hite, 103 Ohio St.3d 580,

582. Imposition of court costs is not discretionary. Id.

It is a long-standing and exceptionally well-established rule that a valid, final judgment

rendered upou the merits bars al] subsequent actions based upon any claim arising out of the

saine transaction or oceturence that was the subject matter of previous litigation. Grava v.

Parlonan Township, 73 Ohio St.3d 379, syllabus (1995). This principle applies to class actions,

such as the instant matter. Bm-ne^y v. Holzer Clinic, Ltd., 110 F.3d 1207, 1213, fn 10 (6th Cir.

1997), citing Cooper v. Federal Reserve Bank ofRiclinzond, 467 U.S. 867, 874 (1984).

William Gliclc, lilce all members of the class, had a remedy if he believed the fines and

court costs imposed against him were unfair or illegal. Specifically, Gliclc, like any defendant

adjudicated guilty of a traffic offense, had the right fo appeal from the final judgment. See Ohio

Revised Code § 2505.03; see also Citv of Conneaxrt 1-. Pipers, 2003 WL 22070602 (11th Dist.

September 5, 2003)(copy attached at Tab 3). Mr. Glick did not timely appeal. His failure to

appeal the imposition of fines and court costs, like the oti er Plaintiffs herein (and all those in the

puiported class) constitutes a complete bar to this class action.

In fact, the Eight District Court of Appeals recently dismissed a civil matter regarding

imposition of court costs based on res judicata specifically because the criminal defcndant who

liad costs assessed against him did not take the issue up on appeal. State of Ohio v. Zuranski,

2005 WL 1406323 (8th Dist. June 16, 2005)(copy attached at Tab 4). This Court could hardly

aslc for a case rnore directly relevant to the instant matter.

The Zuranski decision is consistent with the expansive interpretation of res judicata

adopted by Ohio. Harco Nat'l Insur. Co. v. Smith, 1997 WL 772841, at 2 (9th Dist. 1997)(copy

attached at Tab 5). As res judicata is interpreted broadly, the scope of preclusion provided by the

8

doctrine is also broad. Icl. Res judicata bars subsequent actions on those issues actually raised in

prior litigation and also all actions that could have been raised in previous actions and

proeeedings. Icl., citing Norwood v. McDonald, 142 Ohio St. 299, syllabus ¶1 (1943)(emphasis

added in tlar-co Nai'l). "[R]es judicata requires a ... [litigant] to present every eround for relief

in the first action, or be fo-ever batTed from asserting it." Ncv'1 Arnusernents, Inc. v. Citi of

Springdale, 53 Ohio St.3d 60, 62 (1990)(emphasis added). "Thus, res judicata applies if a party

or its privity could have raised an issue in the prior action, but did not do so." Molran v.

Fetterolf, 107 Ohio App.3d 167, 173 (11th Dist. 1995)(internal citation omitted; emphasis in the

original). As Zuranslci demonstrates, res judicata also applies to civil actions arising out of an

initial cnminal matter so long as the subsequent civil matter involves the satne transaction. See

also, State v. Steffen, 70 Ohio St.3d 399, 410 (1994).

This Court sl ould also note that it is irrelevant whether Glick, or any class member, was

represented'by counsel in the original offense giving rise to inclusion in this class action. "Pro se

litigants are bound by the same rules and procedures as those litigants who retain counsel. They

ai-e not to be accorded greater rights and must accept the results of their own mistakes and

en'ors." lulevers v. First Nation.al Bank of Cincinnati, 3 Ohio App.3d 209, 210 (1st Dist. 1981).

This Court sl ould itu-ther note that this principle lias not only been applied to the issue of res

judicata, but was specifically quoted in the Zurcnaski decision applying res judicata to a criminal

defendant's attempt to relitigate the imposition of cotut costs. Zuranski, supra at 1, quoting

Mevers, 3 Ohio App.3d at 210.

There is simply no way for Plaintiffs to escape the fact that this entire class action is

baiTed by res judicata. Indeed, the issue of res judicata is intrinsic to this class action, as tbe

underlvin, claim through which class counsel attempts to tie the class together is a final

9

iudament of conviction against every individual class member in a prior action that has already

been litigated. Eve-y single class member, without a single exception, already had the right to

litigate any issue as to court costs and fees either directly in the underlying claim which is the

basis for his or her inclusion herein, or on appeal. See Citv of Deficmce v. Petrovish, 61 Ohio

App.3d 32 (Ohio App. 3'' Dist. 1988) (finding on direct appeal that a Municipal Court had no

authority under R.C. 1901.26 to tax as costs the compensation paid to a visiting magistrateq

judge.) Res judicata bars not only those claims actually litigated in a prior action, but every

claim that could have been litigated. lf there was ever any doubt as to whether this principle

applies to the imposition of court costs (and, in fact, there was not), the Zuranski opinion

removed such doubt. Accordingly, this class action should be dismissed in its entirety.

C. BEREA IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THEBEREA MUNICIPAL COURT HAS ALWAYS IMPOSED FEES UNDERR.C. 0 2743.70 AND 2949.091 ON A "PER CASE". RATHER THAN A"PER CHARGE," BASIS FOR ALL TIMES RELEVANT TO THIS CLASSACTION.

in order to properly understand this matler (and this issue specifically), it is necessary

first to distinguish those court costs irnposed pu-suant to R.C. §§ 2743.70(A) and 2949.091(A)

fi-om those imposed pursuant to R.C. §1901.26. In fact, Plaintiffs' amendment of their initial

complaint makes this distinction all the more necessary as the Amended Coinplaint vaguely

blends these issues together in a manner that makes Plaintiffs' actual allegations quite

confusing. Distinguishing between the court costs involved will demonstrate to the Court why

The Clerk of Berea Municipal Court ("Berea's Clerk") is entitled to summary judgment.

i) The Class

R.C. §2743.70(A)(1)(B) requires that a court impose a Nine Dollar ($9.00) fee against

any person convicted of a misdemeanor offense, other than a traffic offense that is not a moving

10

violation, for victims of crime ("Victim's Fund"). R.C. §2949.091(A)(1) further requires that a

courC impose a Fifteen Dollar ($15.00) fee against any person who is convicted of or pleads

ouilty to any offense, other than a traffic offense that is not a moving violation, to be deposited

into the state's general revenue fund ("Revenue Fund"). These two fees are not discretionary.

They are mandatory and must be iinposed unless the court finds a defendant to be indigent. Citv

of Clevelcnzd v. Tighe, 2003 WL 1849217 (8th Dist. April 10, 2003)(copy attached at Tab 6).

This class action is based on allegations that these fees were imposed on a "per charge"

rather than a "per case" basis. As tnany criminal oi- traffic cases heard in municipal courts

consist of multiple charges, so the allegation goes, class members were charged the Victim's

Fund and Revenue Fund fees several times per case, once for each charge, rather than having

such fees assessed only once for the entire case. Yet even if charging such fees on a "per

charge" basis was contrary to law3 Berea's Clerlc should nonetheless be dismissed from

PlaintifPs class action because the evidence is uncontested that Berea Municipal Court has never

imposed such fees on anything other than a "per case" basis.

' It is a separate, and open, question as to whether a court charging fees pursuant to R.C. §§2743.70(A) and 2949.091(A) is contraty to law. Plaintiffs' Amended Complaint relies on two(2) advisory opinions of the Ohio Attot-ney General, Ohio Atty. Gen. Ops. Nos. 91-022 and 91-

039. However, "Attomey General opn2ions are not binding on courts; at best they are persuasive

authority." State ex rel. T^ar Dvke v. Publie Eniployecs Reti renaent Board, 99 Ohio St.3d 430,

445 (2003)(emphasis added). These Attorney Genei-al opinions have only been cited twice byOhio courts for the proposition that costs assessed pursuant to R.C. §§ 2743.70(A) and2949.091(A) may only be assessed on a "per case" basis. Both cases, however, are unreported

decisions, with the references to the Attorney General opinions being in dicta, and are fi'omjurisdictions otlier than the Eighth District Court of Appeals and therefore not from contirolling

jurisdictions. State v. Oglesb_y, 2003 WL 548394, p. 2, fn. 1(3rd Dist. February 27, 2003) (copy

attached at Tab 7); City of Willouglab>> v. Scipiria, 2001 WL 1602651, p. 2, fn. 5(11th Dist.

December 14, 2001)(copy attached at Tab 8),

11

The deposition as well as the affrdavit of Colleen Coyne ("Coyne") demonstrate this.

Coyne is the Deputy Clerlc (Supervisor, Criminal Division) of the Berea Municipal Cotut. See

Affidavit of Colleen Coyne ( attached at Tab 2). In her affidavit, Coyne states that:

In every criminal case aud/or traffic case resolved in the BereaMunicipal Court where a Defendant is found guilty of one or morecharges arising out of the same incident, transaction. or occumnce,such Defendant is assessed only one $15.00 charge for the StateRevenue Fund and only one $9.00 charge for the State Victims ofCrime Fund reeardless of the number of charees issued aeainstsuch Defendant and regardless of the number of charees to whiclithe Defendaut was found Uriiltv, so long as all such charges aroseout of the same incident, transaction or occurrence. Coyne Aff, at116. (Emphasis added).

This has been the practice of the Berea Municipal Court for the entire time period

relevant to this class action. Plaintiffs' have asserted that the statute of limitations for this matter

is ten ( 10) years. Amended Compiaint,'i116. Coyne has held her cuntnt position since 1994, the

entire time relevant to this matter. Coyne Aff. at ¶1. This timing is relevant, as Coyne states

that:

During the entire time that I have served in my capacity as DeputyClerk (Supervisor, Criminal/Traffic Division) for the Berea

Municipal Court clerlc of Court, it l as never been the practice ofthe Berea Municipal Court Clerk of Court to charge any Defendantmore than once per case with the $15.00 fee mandated underO.R.C. 2949.091(A) or the $9.00 fee mandated under O.R.C.2743.70(A). Coyne Aff at i17. (Emphasis added).

That the Berea Municipal Court has never assessed costs under R.C. §§ 2743.70(A) and

2949.091(A) on anything other than a "per case" basis is affirn7ed in Coyne's deposition.

("Coyne Dep;" copy attached hereto at Tab 9). Coyne first testified that the Fifteen Dollar

($15.00) fee imposed is for the state ;enera( revenue fund and the Nine Dollar ($9.00) fee

imposed is for a victim's of crime fund as follows:

12

And you are fatniliar with the allocation of costs associatedwith the state revenue fund that would be sent to the Stateof Ohio?

A. Yes.

Q. And that is a$I5 charge; is that con-ect?

A. For the ge eral fund. yes.

Q. And there is also a charge for the state victims of crimefund for $9; is that con-ect?

A. Coirect.

Coyne Dep., p. 7, lines 6-14.

Coyne continues her testimony, affinning the infonnation in her affidavit, that these fees

are only imposed once per defendant on a "per case" basis, even if multiple charges arise from

the same transaction or occurrence:

And I take it from your affidavit that it's your testimonythat the City of Beraa will oillv cliarge the state revenuefund and the victim of crime fund on one time per eachdefendant even thouglt they may have one or more casesarising out of the satne transaction?

A. Coirect.


In fact, the imposition of the Revenue Fund fee and the Victim's Fund fee is programtned

into theryCoru-t's software and so is imposed upon the opening of a case automatically on a single

"per case" basis, ratlier th^n imposed multiple times on a°per charge" basis:

Q And how would that be implemented following thatprocedure that you're only going to charge it once? Is itbuilt into the software?

A. Yes. Wlten you open a file, it l.nows on the first count,take that. Second, third, fourth counts, do not include tliat.

1J

It does not charge. Okay. So that's preprogrammed, andthen when somebody walks up to the window, thecomputer then would charge them on the first count but notany subsequentcounts?

A. Correct.


The evidence is not only clear, but uncontested, that all defendants appearing in Berea

Municipal Court for any time relevant to this class action were assessed the Fifteen Dollar

($15.00) Revenue Fund fee and the Nine Dollar ($9.00) Victim's Fund fee on] once. These

assessments were on a "per case" basis rather than a "per charge" basis and continue to be so.

As Plaintiffs are not able to provide any evidence contrary to this established practice, the Berea

Clerlc is entitled to summary judgment.

ii) William Glick

As the Berea Municipal Court imposes the Fifteen Dollar ($15.00) Revenue Fund fee and

the Nine Dollar ($9.00) Victim's Fund fee only a singie time per defendant on a "per case" basis,

the same obviously holds true for William Gliclc, the class representative whose appearance

before the Berea Municipal Court gives rise to the Berea Cle-lc's appearance in this matter. In

fact, as both the affidavit and deposition of Colleen Coyne denonstrate, Williain Glick was only

assessed the relevant fees once. In her affidavit, Coyne states:

Said Defendant [Glick] l ad two traffic charges arising from the

same incident (Lanes Violation and OVI) and he pled to an

amended charge of Reckless Operation with tLe original twocharges being dismissed at the Defendant's costs.

Said Defendant [Glick] paid a fine and court costs uponconviction. Defendant was charged court costs that included onlvone assessment of costs for $15.00 allocated to the State RevenueFund and one assessment of costs for $9.00 allocated to the State's

14

Victims of Crime Fund per O.R.C. 2949.09(A) and 2743.70(A),-espectively.

Defendaiit William C. Glick was charaed by the Berea MunicipalCourt only once for the $15.00 State Revemie Fund charge and$9.00 for the State Victims of Crime Fund charge in the casein-espective of the number of offenses or charges issued againsthim arising out of the same incident, transaction or occun-ence.

Coyne Aff, at 1113, 4 and 5. (Emphasis added).

This is, as is true for the class in general, supported and re-affiniied by Coyne's

deposition testimony. Specifically:

Q Now, gon7g specifically back to the case of William Gliclc,

which was I think Case No. 04TRC3862, when youreviewed the court costs assessed to Mr. Glick, how many

times was Mr. Glick assessed the $15 fee that is sent to thetreasurer of the State of Ohio for the gene-al revenue fund?

A. One time.

And in that same case, how many times was Mr. Gliclcassessed the $9 fee for the victims of crime fund that wassent to the treasure- for the State of Ohio?

A. One time.


The accuracy of Coyne's testimony is demonstrated by the actual receipt for Glick's case,

attached as certified records to Coyi-ie's Affidavit. (Coyne Aff. at ¶2.) The records are for Case

No. 04TRC03862, the satne case that fonns the basis for Gliclc's inclusion in the class action.

See, Amended Complaint, 1112. These records aclalowledge one entry of Fifteen Dollars

($15.00) for the State Revenue Fund and one entry of Nine Dollars ($9.00) for Victim's of Crime

Fund.

P]aintiffs 11ave nothing to rebut this testimony. The reason for this is simple - the fees

assessed by Bcrea Municipal Court pursuant to R.C. S§ 2743.70(A) and 2949.091(A) are only

15

assessed once per defendant appearing before that court. Thcy are assessed on a "per case"

rather than a "per charge" basis. This has been the practice during the entire time relevant to this

class action. This is true for the class members in general and it is tnie for Glick specifically.

Obviously Plaintiffs cannot produce evidence to the contrary when the contrary does not occur.

D. DISMISSAL OF THE CLASS ACTION FOR ALLEGATIONSUNDER R.C. §1901.26

In their Aniended Complaint, Plaintiffs state claims for Declaratory Relief (Count I),

Injunctive Relief (Count II), and Equitable Relief (Count III). In each of the three counts,

Plaintiffs allege that the costs that were imposed upon class members include, "but are not

limited to," those costs assessed pursuant to R.C. §§ 2743.70(A) and 2949.091(A). See,

Amended Complaint, 91128, 31 and 36. Given the vague nature of the quoted clause in these

ai_legations, it is unclear exactly what Plaintiffs mean. However, all costs that are actuallv

imposed by the Berea Municipal Court are imposed either pursuant to R.C. S§ 2743.70(A) and

2949.091(A) or pursuant to R.C. §1901.26. As all costs imposed by Berea Municipal Cotu-t

against defendants in that court piirsuant to R.C. §1901.26 are itnposed lawfully ptn'suant to the

statute, Berea Municipal Court should be dismissed from this class action.

^he-C-aurt shgttld frrst nate--that tlre-twa-(2j-advisory-opinions-of-the-Ohio-Attorney-

General, Oirio Atty. Gen. Ops. Nos. 91-022 and 91-039 ("A.G. Opinions"), which form the basis

for Plaintiffs' claims in no way relate to R.C. §1901.26. Those A.G. Opinions onlv provide an

opinion regarding court costs imposed pursuant to R.C. §§ 2743.70 and 2949.091. Therefore,

those A.G. Opinions, even if they are a valid basis for Plaintiffs' class claims under R.C. §§

2743.70 and 2949.091 (and they are not; see Section F, infra), obviously cannot fonn the basis

for claims as to R.C. § 1901.26, or any other statutory provision for that matter.

16

Furthennore, the actual language of R.C. §1901.26 allows Berea Municipal Coui-t to

impose costs and fees on a "per charge" rather than a "per case" basis. State of Ohio ex 7-el.

Dayton Lm-i,Library Association v. Yhl7ite, 163 Ohio App.3d 118, 126 (Ohio App. 2"d Dist. 2005)

("It is equally true that these statutes authorize these fees to be imposed on the filing of each

`criminal cause' or cause of aotion."), affirnzed, 110 Ohio St.3d 335 (2006). R.C. §1901.26(B)(1)

states that:

"[tlhe municipal court...may chai-ge a fee...on the filing of eachcriminal cause..."

R.C. §1901.26(B)(2)(a) defines "criminal cause" as follows:

"Criminal cause" means a charge alleging the violation of a statuteor ordinance, or subsection of a statute or ordinance, that requires aseparate fiiiding of fact or a separate plea before disposition and ofwhich the defendant may be found guilty, whethei- filed as part of amultiple charge on a sin¢le summons, citation, or complaint or as aseparate charee on a sin,le suimnons. citation or comnlaint."(Einphasis added.)

As Plaintiffs' entire class action is based on the allegation (and p-esumption) that

assessing eou: costs and fees on a"per charge" rather than "per case" basis is contrary to law,

the clear language of R.C. §1901.26 demonstrates that the class action cam-iot be sustained on

any allegation of improper assessment of fees pursuant to that statute. As the Ohio Supreme

Court explained in F'vB.ite, supra at 340:

Our paramount concern is legislative intent in interpreting R.C.1901.26 and 1901.261. State ex rel. Unitecl States Steel Corp. v.Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630, 786 N.E.2d 39, ¶ 12.To determine this intent, we read words and phrases in contextaccording to the rules of grammar and common usage. R.C. 1.42.

If, as the municipal court clerlc contends, these provisions patentlyand unambiguously require the county to pay the specified court

costs for unsuccessful state-law prosecutions in municipal court,we must apply the statutes as written instead of resorting to furtherinterpretation. See, e.g.; State ex rel. Canales-Flores v. Lucas Cty.Bd. of Electiois, 108 Ohio St.3d 129, 2005-Ohio-5642, 841 N.E.2d

17

757, ¶ 28, quoting BedRoc Ltd., LLC n. United States (2004), 541U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (" 'our inquirybegins with the statutory text, and ends there as well if the text isunambiguous' ").

Aggain, any court costs assessed against Gliclc or any other defendant in Berea Municipal

Court are imposed either pursuant to R.C. §§ 2743.70(A) and 2949.091(A) or pursuant to R.C.

§ 1901.26. There are no other couit costs or fees that could possiblv be the subject of Plaintiffs'

oblique references in paraeraphs 28, 31 and 36 of their Ainended Comrolaint. R.C. §1901.26

court costs have been set by fonnal Court Order and Jountal Entry signed bv the Municipal

Court Judge, ptu-suant to the statutory provisions. See, R.C. §1901.26(A)(1)(a) and (B); see

also, Tiglse, sttpra.

Even viewing the evidence most favorably to Plaintiffs, it is clear that the Berea Clerlc is

entitled to summary jud;meiit. Assttmina that iL is mandatory under iaw to impose fees under

R.C. §§ 2743.70(A) and 2949.091(A) on a"per case" basis only, rather than a"per charge" basis,

the uncontested evidence is clear that this is what the Bei-ea Municipal Court does. Indeed, it has

assessed these fees only on a "per case" basis for the entire period relevant to this action. It has

done this for all defendants that have appeared before the Berea Municipal Court. William

Gliclc, who appeared before the Berea Municipal Court, was only imposed such fees once.

As for Plaintiffs' vague a1leaations re2arding possible other costs, Plaintiffs are grasping

at straws. All other costs assessed by Berea Municipal Court (other than the ones assessed under

R.C. 5S 2743.70 and 2949.091) are assessed under R.C. §1901.26. Yet those costs are assessed

pursuant to Order and Jud-ment Entry si-ned by the Municipal Court Judge, as required bythe

statute. Further, that statute explicitly allows costs to be assessed on a°per charge" basis.

Plaintiffs simply catmot escape the conclusion that Berea Municipal Court is entitled to summary

judgment.

18

E. THE CLERK OF THE BEREA MUNICIPAL COURT SHOULD BEGRANTED SUMMARY JUDGMENT BECAUSE HE IS IMMUNEFROM LIABILITY FOR ALL ACTS OF THE CLERK AT ISSUE IN THISCLASS ACTION.

The Clerk of the Berea Municipal Court is entitled to summary judgment because he is

inimune from all liability for all acts perfonned by him at isstte in this class action. The issue of

immunity for a clerk of a municipal court is closely comiected with the issue of judicial

immunity. "It is well-established under Ohio law that court clerlcs...have absolute immunity

against suits arising out of the performance of judicial or quasi-judicial activities." haghrarn n.

City of Slieffield Lnke, 1996 WL 100843, at 3(8th Dist. March 7, 1996)(emphasis added; copy

attached at Tab 10), eiting Kelly v. bThiting, 17 Ohio St.3d 91, 93-94 (1985); Bcrker v. CoaErt of

Cofmnon Pleas of Czryahoga County, 61 Ohio App.3d 59, 64 (8th Dist. 1989) ( further citations

omitted). The reason that judicial innntn7ity extends to a c-ourt cler?c is because a cleric merely

acts at a court's directive. Kelh), supra at 93.

Based upon this, the Berea Clerk should be dismissed from this class action. All costs

and fees collected by the Clerk at issue in this matter were collected pursuant to statute and eoml

order. The Ohio Supreme Court has held that the imposition of costs under R.C. S§?743.70 and

2949.091 are within a judge's judicial capacity and therefore judicial inununity applies. State ex

rel. Fisher v. Bin•khardt, 66 Ohio St.3d 189, 191 (1993) ("One of a judge's functions is to

interpret the law in matters over which the judge has jurisdiction."). The Ohio Supreme CourC

held

"While we find that the court does have a mandatory duty to collect and transmitcourt costs to the state in bond forfeiture cases pursuant to R.C. 2743.70(B) and2949.091(B), appellee cannot be held civilly liable for his interpretation to thecontrary, since appellee was acting in his capacity as a judge who had the duty tointeipret the statutes and establish court cost schedules in traffic offenses whichwould come to his court."

19

Therefore, such immunity applies even if the interpretation of a statute was not only

incorrect, but voidable as taken in excess of a court's j urisdiction. Id. at 192. So lona as the

judge possessed proper jurisdiction of the underlying stibject matter of the case, there is no civil

liabilityfor actions taken pursuant to judicial capacity. Id. at 191.

This judicial immunity extends to the Berea Clerk. The office of a clerk of court is a

function mandated by the general assembly. State v. Daraslis, 1999 WL 420296, at 4 (9th Dist.

June 23, 1999) (copy attached atTab 11), citing R.C. §1901.31, ei seq. Operation of a clerlc's

office is not a proprietary function of govet-rnnent. Id. Any liability imposed upon the Berea

Clerk must be specifically imposed by statute or be the result of the Clerlc's acts being

manifestly outside the scope of his employtnent or be the result of his acts being performed with

malicious ptupose, bad faith or wanton recklessness. Id. None of these exceptions to immunity

apply. Rather, the Berea Clerk merely collected court costs and fees at the directive of the Berea

Municipal Court pursuant to lawftil statutes aid comt order. Accordingly, the Berea Clerk is

entitled to summary judgment as all of the Clerk's acts at issue in this matter are irmnune from

liabilitv.

F. PLAINTIFFS' CLAIMS ARE BARRED BY THE EQUITABLEDOCTRINE OF PAYMENT AND RELEASE

To establish a claim for restitution, a party must demonstrate "(1) a benefit conferred by a

plaintiff upon a defendant; (2) lcnowledge by the defendant of the benefit; and (3) retention of the

benefit hv the defendanl under circumstances where it would be unjust to do so vvithout paymer:t

('unjust enrichment')." Hanibleton v. R.G. Barry Co7p. (1984), 12 Ohio St.3d 179, 183, 12 OBR

246, 465 N.E.2d 1298. In the present case, Plaintiffs claims are ban-ed by each of their voluntary

paytnent of the court costs in satisfaction of the plea a-i-eement.

20

Wliile the btu-den of p-oof of payment is uiquestionably upon this moving Defendant,

see, e.g., Zinaniernem7 v. Eagle Mtge. Corp. (1996), 110 Ohio App.3d 762, In re Estate of

Buckinghane (1967), 9Ohio App.2d 305, 309, 38 0.0.2d 351, 353, 224 N.E.2d 3839 386

("Paynient is an affirmative defense which must be asserted and proved."); Sullivan v. Sullivan

(1940), 66 Ohio App. 315, 317-318, 20 0.0. 139, 140-141, 31 N.E.2d 165, 166-167 (holding

that when the defendant admits the allegations of a preexisting debt and pleads payment, the

burden of proving such payment rests upon him); Alperin v. Feldman (App.1933), 14 Ohio Law

Abs. 723, 726 ("[I]f an.affinnative contract to pay money or to perform some duty is proved, it is

then inctunbent on defendant to prove payinent, performance or tender, or a sufficient excuse

therefrom."), it cannot be disputed that Plaintiff voluntarily paid the court costs assessed in order

to reduce the char.-es against him and finally, and conclusively, resolve the underlying traffic

offense. Plaintiff s claims against the Clerk of Court are, therefore, ban-ed by the doctrine of

payment and release.

^v. PLAINTIFFS' CLAIMS FOic INJUNCTIVE RELIEF ARE BARIZEDSINCE PLAINTIFFS HAVE AN ADEQUATE REMEDY AT LAW BYWAY OF AN APPEAL

It is well settled that an injunction will not issue where there is an adequate remedy at

law. See Alid-,4nzerica Tire, bac. v. PTZ Trading Ltd. (2002), 95 Ohio St.3d 367; Haig v. Ohio

State Bcl. of Edn. (1992), 62 Ohio St.3d 507, 510, 584 N.E?d 704; Garono v. Stcate (1988), 37

Ohio St.3d 171, 173, 524 N.E.2d 496; Salen2 Iron Co. v. H.Ydand (1906), 74 Ohio St. 160, 166, 77

N.E.751.

It is a general nile that a court of equity will not interfere by injunction to prevent the

enforcement of criminal statutes at the instance of an alleged law violator. Troy Amusentent Co.

v. Atten.weliler (1940), 137 Obio St. 460, citinu, I High on Injunctions (4 Ed.), 85, Section 68.

21

"The le^itimate place for the trial of criminal cases is in the courts established for that purpose

and courts of equity will not oust the proper forum by drawin-, to themselves litigation which

will prevent criminal courts from exercising their jurisdiction. So long as the defense which may

be made in impending criminal prosecution is adequate to protect the rights of the accused,

equitable relief by injunction is not available to him." Id. at 465.

Each metnber of the purported class action had, or has, an adequate remedy at law by

way of an appeal. Ohio Rev. Code §2505.03. Because all members of the class, including these

Plaiutiffs, have adequate retnedies at law, there claim for injunctive relief must be denied.

H. THE BEREA MUNICIPAL COURT CLERK IS ENTITLED TOSUMMARY JUDGMENT BECAUSE THE ATTORNEY GENERALOPINIONS ARE INSUFFICIENT TO SUSTAIN A PRIVAGE CLASSACTION:

The bases of the instant class action are two (2) opinions of the Attorney General's Office

of the State of Ohio, specifically Ohio Atty. Gen. Ops 91-022, dated April 16, 1991, and 91-039,

dated Septeniber 12, 1991. As noted earlier, such Attoniey General Opinions are at best - at

best - persuasive authority on1y. The Clerk of the Berea Municipal Court is entitled to summary

judgment because sttch limited authority as Atton-iev General Opinions caiuiot fot-m the bases of

this class action. Further, neither the Attorney General Opinions nor either of the relevant

statutes at issue provide for a private cause of action.

Although Attoniey General Opinions are entitled to some degree of respect by courts,

they have never been considered controlling authority. A&B Refuse Disposers, Inc. v. Boarcl of

Rcvenna Township Tr-ustees, 1991 WL 45644, at 3(11th Dist. March 29, 1991)(copy attached at

Tab 12), citing State ex rel. Schweinhaaer v. Underhill, 141 Ohio St. 128, 132 (1945). Rather,

"[a]s a rule, when the attomey ;eneral passes upon the interpretation of a questioned statute, a

court considers the opinions and accords it due respect, but the court is in no way obligated to

T?

follow the Attomey General's Opinion." A&B Refiise Disposers, supra. Indeed, the case law is

rife with examples of courts declining to follow such opinions. See, i.e. iraia Dyke, supra, A&B

Refuse Disposers, supra, State ez rel. Erzdlich v. Industrial Conzna'ri. of Ohio, 16 Ohio App.3d

309 (10th Dist. 1984), In the Matter of Fetters, 1998 WL 102997 (12th Dist. March 9,

1998)(copy attached at Tab 13). Given the limited persuasiveness of Attomey General Opinions,

this Court should not allow Plaintiffs' class action to proceed with nothing else to support it.

That summary judgment is warranted is demonstrated by another facet of interpretation

of Attomey General Opinions. Not only are such opinions merely persuasive, but furthennore,

such Attomey General Opinions are "entitled to only such consideration as the reasons given

for the opinion warrant." Schweinhager, supra at 132, citing 37 Ohio Junsprudence, 700,

Section 390; see also, Endlich, supra at 312, citing, 50 Ohio Jurisprudence 2d (1961) 256,

Statutes, Section 269. Atty. Gen. Op. No. 91-022 was adrlressed to The Honorable Stephanie

Tubbs Jones, Cuyahoga County Prosecuting Attomey, the first sentence of which indicates that

tiie opinion was provided at the request of ivis. ,iones' predecessor. Atty. Gen. Op. No. 91-039

was addressed to The Honorable Thonias E. Ferguson, Auditor of State regarding Mr.

Ferguson's own request for clarification of the earlier Atty. Gen. Op. No. 91-022. Neither of

the Attorney General Opinions in anv wav discusses, anticipates or even insinuates that an

individual defendant before a municipal court possesses a private cause of action based on

the assessment of those court costs at issue in those opinions. Clearly, the remedies souQht by

Plaintiffs in the instant class action -.o considerably beyond anytliing warranted in the Attomey

General Opinions themselves.

Tiie Court should also note that the actual statutes interpreted bv the Attoniey General

Opinions, R.C. §§2743.70 and 2949.091, also fail to include any provisions for a private cause of

23

action. That the legislature failed to include any provision for a private cause of action in these

statutes strengthens the intepretation that no such cause of action exists. See, YYilswl v. Burt,

1994 WL 723506, at 3 (2nd Dist. Decen-iber 7, 1994) (copy attached at Tab 14). If there is a

legitimate issue regarding the enforcement of the statutes at issue, it is the Attorney General's

office itself, ratlier than a p_rivate individual, that si ould bring any action for proper

enforcement. State ex rel. Brown v. Galbraith, 52 Ohio St.2d 158 (1977).

The Court should recognize that there are four separate places in which a private cause of

action might be found - 1) R.C. §2743.70; 2) R.C. §2949.091; 3) Atty. Gen. Op. 91-022; and 4)

Atty. Gen. Ops 91-039. All four of them prove fruitless for Plaintiffs. That Plaintiffs are

seeking to continue a private action not only for themselves, but on behalf of potentially

thousands of class meinbers in a class action that could potentially reach into the millions of

dollars, this Court should view this action with deep suspicion. Combining this with the litnited

authority enjoyed by Attomey General Opinions in the first piace, the Court sliould find that

Plaintiffs do not have the adequate bases to continue with this class action and should grant

summary judgment to Bcrea Municipal Court's Clerk.

1. THERE IS NO RIPE CONTROVERSY BEFORE THIS COURT ANDPLAINTIFFS' CLAIMS ARE MOOT.

It is a well-established pr+.nciple of law that satisfaction of a judgment renders an appeal

from that judgment moot. Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245, 551 N.E.2d

1249. "Where the court rendering judgment has jurisdiction of the subject-matter of the action

and of the parties, and fraud has not intervened, and the judvi-ient is voluntarily paid and

satisfied, such paynient puts an end to the controversy, and takes away *** the right to appeal

or prosecute eiror or even to move for vacation of judgment." Rauch v. Noble (1959), 169 Ohio

St. 314, 316, 159 N.E.2d 451. And, if an appellant neglects to obtain a stay of the judgment, the

24

non-appcaling party has the right to attempt to obtain satisfaction of the judg nent even though

the appeal is pending. When "the non-appealing party is successful in obtaining satisfaction of

the judgment, the appeal must be dismissed because the issues raised in the appeal have become

moot." I-Iagood v. Gail (1995), 105 Oliio App.3d 780, 785, 664 N.E.2d 1373.

Consequently, a court will generally not resolve a moot controversy. Controversy has

been defined "[a] disagreement or dispute." Black's Law Dictionary (8 Ed. Rev. 2004) 354. A

"controversy" can include many aspects and consist of several controversies. St-ctso v. Song

(1984), 17 Ohio app.3d 39, 42, 17 OBR 93, 477 N.E.2d 1176. "A moot case is one wliich seeks

to get a judginent on a pretended controversy, when in reality there is none, or a decision in

advance about a right before it has been actually asserted and contested, or a judgment upon

some matter which, when rendered, for any reason cannot have any practical legal effect upon a

then-existing controversy." Culver v. Citv of Warren (1994), 84 Ohio App.373, 393, 52 Ohio

L.Abs. 385, 83 N.E. 2d 82.

In the present case, all Plaintiffs herein were convicted of various traffic offenses,

assessed. court costs and volttntaril_y paid such court costs. Any claim or controversy ar:sing from

these facts, or any decision in advance about a ri=-ht before it has been actually asserted or

contested by prospective class members, is moot. In sum, when it is over, it is over. This case

should be over. Summary judgment in favor of the Defendant Raymond J. Wohl is appropriate.

25

VII. CONCLUSION

Based on the foregoing, this Court should grant Defendant Raymond J. Woh1 summary

j udginetit on all counts of the Amended Complaint.

Respect£tillv submitted,

David--'Tv:-Cuppage (0047104)anacu»z uclinxacolai-v.cona

Scott D. Simpkins (0066775)sdairnp(a).clinaacolcneco n

Climaco, Lefl<owitz, Peca, Wilcox& Garofoli Co., L.P.A.


Gregoiy M. Sponseller (0012350)Director of LawCity of Bei-eaBerea City Hall11 Berea ConunonsBerea, Ohio 44017Telephone: (440) 826-5800

Attomeys for Defendant Ra}nnond J. Wohl, Clerkof Court of the Berea Municipal Court

26

CERTIFICATE OF SERVICE

A copy of the foregoing Motion for Summary Judgment has been sent via regular

U.S. mail this Ly C day of December, 2006, upon the following:

W. Craig Bashein, Esq.Bashein & Bashein Co., L.P.A.Terminal Tower, 35lh Floor50 Public SquareClevelaud, Ohio 44113-2216

Attorne,ys for Plaintiffs

Patrick J. Perotti, Esq.Dworlcen & Benistein60 South Parlc PlacePainesville, Ohio 44077

Attornevs for Plaintiffs

Paul W. Flowers, Esq.Paul W. Flowers Co., L.P.A.Tenninal Tower, 35"' Floor50 Public SquareCleveland, Ohio 44113-2216

Attornevs fo- Plaintiffs

Frank Gallucci, 111, Esq.Plevin & Gallucci55 Public Square, Suite 2222Cleveland, Ohio 44113

Atto•nevs for Plainteffs

Franlc M. SCrigari, Esq.Assistant Attorney GeneralConstitutional Offices Section30 East Broad Street, 17th floorColumbus, Ohio 43215-3428

Attorn.ev for DefenclantsDepart nent of Treasury, State ofOhio and State of Ohio

David-M-: Cuppage

27



Plaintiffs,

vs.

STATE OF OHIO,

CASE NO. CV 05 564761

JUDGE AMBROSE

AFFIDAVIT OF RAYMOND J.NNIOHL, CLERK OF COURT, INSUPPORT OF MOTION FORSUMMARY JUDGAIENT

Defendant.

The Undersigned, Ra}anond J. Wobl, Clerlc of Court of the Berea Municipal

Court, being first duly sworn according to law, and based upon his personal knowledge

and belief, states as follows:

1. I was first elected as the Clerk of Court for the Berea Municipal Court in

1993. Pursuant to the Oliio revised code, I serve a six year tenn. My responsibilities

include oversight of all functions of the Clerk of Court's office including keeping and

maintaining records for the Traffic/Criminal division of the Court.

2. Tbe Berea Municipal Court has jurisdiction over the communities of

Berea, Brook Parlc, Middleburg Heights, Olnisted Falls, Olmsted Township, Strongsville,

the MetroParks, and the Oliio State Patrol.

3. The Clerk of Court's office is made up of the following departments:

Traffic/Criminal Division; Civil; and Small Claims. Colleen Coyne is the

Traffic/Criminal Department Supervisor.

4. The Berea Municipal Court is funded primarily by the City of Berea.

Funding to operate the Berea Municipal Court comes in part from iniposition of basic

court costs assessed against defendants in traffic/criminal, civil and small claims court.

Depending on the costs being assessed and collected, the Clerk then disburses those fi.iuds

to the Gene-al Fund of the City of Berea, other funds witliin tl e City of Berea, Cuyahoga

County or the State of Ohio. Monies disbursed to the City of Berea a-e used to pay

operating expenses of the Berea Municipal Court including payment of salaries, benefits,

and general adn7inistrative expenses necessary for operation of the Municipal Court. In

sum, Berea Municipal Court expenditttres typically exceed disbursements to the general

fund of the City of Berea. Shortages are made up from disbursements from other funds

within the City of Berea.

4. Basic court costs pursuant to Ohio R.C. §1901.26(A) are established

pursuant to a Journal Entry and Cotu-t Order si.-ned by the duly elected Berea Municipal

Cowt JudLIe and the duly elected Clerl: of Court. True and accurate copies of Journal

Entries dated Jamuary 11, 2000, December 21, 2000, July 12, 2001, May 28, 2002, June

13, 2002, September 24, 2003, October 21, 2003, June 2, 2004, .Ianuary 3, 2005,

September 16, 2005 and June 23, 2006 are attached hereto as Exhibits Al through A11.

5. Basic court costs are published by the Clerlc on a postcr board which is

maintained in a conspicuous location within the f ling area of the Clerk of Courts and is

viewable by the public. In addition, basic cout-t costs are also published on the Berea

Municipal Court's web site at http://www.bereamunicotirt.org/info.asp?pageld=l9. A

true and accurate copy of the Traffic/Criminal Court Costs schedule is attached hereto as

Exhibit B.

^

Fiu-ther affiant sayeth naught.

^lSwoni to and subscribed in my presence this S - day of ^^ C^^(n P^E2006.

Notary Public

ALAN C. BUDNEYNotary Public, State of Oh1o

My Commission Exoires Oct. 20,

3

STATE OF OHIO

COUNTY OF CUYAHOGA

CITY OF BEREA

In re: Traffic/Criminal DivisionCourt Costs


JOURNAL ENTRY

JA.NUARY 11, 2000

Effective February 1, 2000, IT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

AssaultAssault on a Police OfficerCarrying a Concealed WeaponChild EndangeringComplicityCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the Influence of AlcoholDriving While Under SuspensionDrag ChargcsDrug ParaphemaliaFalsificationFleeing a Police OfficerImportuningIinpioper Handling of a FirearmIndecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacingObstructing Official BusinessPhysical Control of a Motor VehiclePossession or Use of Aleohol-UndcraReReckless Operation of a Motor VehicleResisting ArrestSexual impositionSoliciting/ProstitutionStalkingTheftV andalismViolating Temporary Protection OrdcrTelephone HarassmentUnauthorized Use of a Motor VehicleVoyeurism EXHIBIT

$100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00t 00.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00

OTHER BASIC COSTS:

Bailiff MileaoeBailiff Serve SubpoenaCapiasContinuanceFilin-, Fee for AppealNSF Check FeeRecord SearchWarrant

BE IT SO ORDERED IN ACCORDANCE WITH O.R.C. §1901.26A

STOCK.JUDGE

Spread on the Berea Municipal Court Joumal

Volume _2090 Page ^9_

30imile00

20.0010.0050.0025.00

5.0030.00

:-) 70 ti cr->

S O

O

®

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"Dm

c

r^

^ f T1,')C7^ °oCD77 =

D ar

0

Fi5 -1

STATE OF OHIO

COUNTY OF CUYAHOGA

CITY OF BEREA



JOURNAL ENTRY

DECEMBER 21, 2000

Effective February 1, 2001, IT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

AssaultAssault on a Police OfficerCarrying a Concealed WeaponChild EndangeringCoinplicityCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the lnfluence of AlcoholDriving While Under SuspensionDrug ChargesDrug ParaphernaliaFalsificationFleeing a Police OfficerImportuningImproper Handling of a FirearmIndecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacingObstructing Official BusinessPhysical Control of a Motor VehiclePossession or Use of Alcohol-T-InderaaeReckless Operation of a Motor VehicleResisting ArrestSexual ImpositionSoliciting/ProstitutionStalkingTheftV an dali smViolating Temporary Protection OrderTelephone HarassmentUnauthorized Use of a Motor VehicleVoyeurism

EXHIBIT

I Az.

S 100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100:00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00100.00

OTHER BASIC COSTS:

Bailiff MileaUeBailiff Serve SubpoenaCapiasContinuanceExpungementFiling Fee for AppealMotion for Occupational Drivina, PrivileeesNSF Check FeeRecord SearchTime to PayWarrant

I

11 BE IT SO ORDERED IN ACCORDANCE WITH O.R.C. §1901.26A.

h

MARK^4. COMSTOCK, JUDGE/

Spread on the Berea Municipal Court Journal

Volume ')0 00 Pagei_u_

.34imile5.00

20.0010.0075.0050.0025.0025.005.00

20.0030.00

x^ y-= ztcw -p

00

COUNTY OF CUYAHOGA

CITY OF BEREA



JOURNAL ENT'RY

July 12, 2001

Effective September 1, 2001, IT IS HEREBY ORDERED that waiver schedule in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

SchoolZone

RZPH 24 2L 3S! 3 5 44 A2 ^ Z 60 6^21-25 10526-30 105 9531 35 115 95 0536-40 1^5 105 95 9541-45 135 115 105 95 9546-50 125 115 105 95 9551-55 125 115 105 95 9556-60 125 115 105 95 9561-65 125 115 105 95 9566-70 1,25 115 105 45 9571-75 125 115 105 9576-80 125 115 10591-85 125 11586-90 125

Traffic ViolationsWithout Accidente UcaoeImproner Lan Traffic Signal Devic.e, ^

Lane Usaee $105.00 Stop Sign/Red Light $105.00Cross Yellow Line(s) $105.00 Failure to Yield $105.00Improper Passing $105.00 No Thru Trucks $105.00Change of Course $105,00 Do Not Enter/One Way -10K,00

Weaving w/o Alcohol $105.00 RRFlashing Light $105.00Flashing Red Light $105.00

imTrorer Tum Private PropertyB•y-Pass $105.00Left of Right $105.00 Closed One Way Street $105.00No Signal $105.00 Evasion of Signal $105.00Prohibited Turn $105.00U-Turn $105.00 Following too Closely $105.00^YY^rong Lane $105.00 Peeling/Squealing Tires $105.00

I

I Traffic Waiverable Violations Continued

VJaiverahle Violations

Illeaal ParkingIllegal Parlcing Firelane

$50.00$50.00

Seat Belt - DriverOne Charge $50.00

Expired Lic. Plates $60.00 Additional Charges $25.00One License Plates $60.00 Seat Belt -Passenger $25.00

Improper Muffler $60.00 Child Restraint $100.00

Improper ExhaustLic. Plate Light

$60.00$60.00

Expired Operator's LicenseOne CharQe $105.00

Improper Head/Tail Light $60.00 Additional Charges $70.00Curf w/After Hours $60.00 Fictitious Plates $105.00Unsafe Vehicle $60.00 Studded Snow Tired $105.00

No Bumper/Fender $60.00 Bicycle Prohibited $105:00

Hitchhiking $70.00 Purpose of Way $105.00

Obstructing View $90.00 Open Container/Public Place $105.00

No Tum Signal $90.00 No Motorcycle Endors. $105.00Motorcycle Safety Equip. $90.00 PossessionofAlcohol-Parhs $105.00

Turn Signai $90.00 Disorderly Conduct $175.00Littering $175.00

BE IT SO ORDERED IN ACCORDANCE WITH O.R.C. § 19^^6A.

Spread on tlie Berea Municipal Court Joumal

Volume?Q01 Page I ()

I

STATE OF OHIO

CQUNTY OF CUYAHOGA

CITY OF BEREAI



JOURNAL ENTRY

May 28, 2002

Effective July 1, 2002, IT IS HEREBY ORDERED that the waiver schedule in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

SchoolZone

MPR 24 25 04 15 44 41 50 5i 50 L21-25 11026-30 110 10031-3^ 120 100 10036-40 130 110 10041-45 140 120 11046-50 130 12051-55 13056-6061-6566-7071-7576-8091-8586-90

100100 100110 100 i00120 110 100 100130 120 110 100 100

130 120 110 100i30 120 110

130 120130

Traffic. Violations Without AccidentTmpsper T .ane T Isagt

Lane Usa-e $110.00Cross Yellow Line(s) $110.00Improper Passing $110.00Chan_e of Course $110.00Weaving w/o Alcohoi_ $110.00

Jmproper TurnLeft of RightNo SignalProhibited TurnU-TurnWrong Lane

$110.00$110.00$110.00$110.00$110.00

100inn l00110 100120 110130 120

130

Traffi ^j^paa] Device

Stop Si,;m/Red Light $110.00Failure to Yield $110.00No Thru Trucks $110.00Do Not Enter/One Way S110.00RR Flashing Light $110.00Flashing Red Light $T10.00Private Property By-Pass $110.00Closed One Way Street $110.00Evasion of Signal S110.00

Followin; too Closely $110.00Peeling/Squealing Tires $110.00

Traffic Waivcrable Violations Continued

Waiverable Violation5

Illegal ParlcingIllegal Parking Firelane

$55.00$55.00

Seat Belt - DriverOne Charge $55.00

Expired Lic. Plates $65.00 Additional Charges $30.00One License Plates $65.00 Seat Belt -Passenaer $30.00Improper Muffler $65.00 Child Restraint $105.00Improper ExhaustLic. Plate Liaht

$65.00$65.00

Expired Operator's LicenseOne Charae $110.00

Improper Head/Tail Light $65.00 Additional Charees $75.00Curfaw/After Hours $65.00 Fictitious Plates $110.00Unsafe Vehicle $65.00 Studded Snow Tires $110.00No Bumper/Fender $65.00 Bicycle Prohibited $110.00Hitcl^hilcing $75.00 Purpose of Way $110:00Obstructed View $95.00 Open Container/Public Place $115.00Motorcycle Safety Equip. $95.00 Over 21Tinted Windows $95.00 No Motorcycle Endorsement $115.00

Possession of Alcohol-Parlcs $115.00Disorderly Conduct $115.00Littering $180.00

BE IT SO ORDERED IN ACCORDANCE WITH O.R.C. §1901.26A.

Spread on the Berca Municipal Court Journal

Volume ? 00? Page

^w

STATE OF OHIO

COUNTY OF CUYAHOGA

CITY OF BEREA

In re: Traffic/Criminal Division Court Costs

BEREA MUNTICIPAL COURT

JOURNAL ENTRY

NNE 10. 2002

Effective July 1, 2002, IT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

State $11.00

Victims 9.00

Court Costs 50.00

Computer Maintenance 10.00

Computer Fee 5.00

Construction Fund 0Basic costs: $90.00

The charges listed below have an additional Court Cost charge of $25.00

AssaultAssault on a Police OfficcrCarrving a Concealed 'WeaponChild EndangeringComplicitVCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the Iniluence of AlcoholDriving WYule Under SuspensionDrug ChargesDrug ParaphernaliaFalsificationFleeing a Police Offi ccrImportuningImproper Handling of a FirearmIndecent Exposure/Public IndecencyLeaving the Scene of a 1`.4otor Vehlcle :Accidnt

M en acin gObstructing Official BusinessPhysical Corih-ol of a Motor VehiclePossession or Use of Alcoho]-UnderageReclc]ess Operation of a Motor VehicleResisting AirestSexual ImpositionS o li ci tin g/Pro stituti onStalkingTheft

VandalismV'iolating Temporary Protection OrderTelephone HarassmentUnauthorized Use of a Motor VehicleVoyeurism

OTHER BASIC COSTS:AppealBailiff Fees: (minimum)BondCapiasChanae of PleaCertified Journal EntryCompactContinuanceCopiesi (.10/each, minimum)Expun-ement: City/StateImmobilization: (Inside Jurisdiction)

(Outside Jurisdiction)

Jury DemandJury SummonsJuror: State

CityLicense ForfeitureLieense ReleaseMotion for Driving PrivilegesNSF Clieck FeeOffsite Retrieval.Probation: Pre-Sentence Investigation

First ycarAnnual ProbationInactive Probation

ReductionRecord SearchReprint Drivina, Privile.gesSubpoena: Issue

ServeTime to PayWarrantRelease Warrant Block

BE IT SO ORDERED IN ACCORDANCE WITH O.R.C. §17A .36A.

$75.005.005.00

20.005.005.00

25.0010.00

1.0075.00

300.00350.00

75.00100.0025.0025.0025.0015.0045.0025.0025.0075.00

125.0050.0025.0065.00

5.001.5.0010.00

1.0020.0050.00i5.00

Spread on the Berea Municipal Court JournalVolume 2002 Page 5 5

STATE OF OHIO

COUNTY OF CUYAHOGA

CITY OF BEREA

RE: Traffic/Criminal DivisionCourt Costs


JOURNAL ENTRY

SEPTEMBER 24, 2003

IT IS HEREBY ORDERED that basic court costs in the Traffic/Criminal Division

of the Berea Municipal Court shall be modified as follows as dictated by House Bill 95

effective September 26, 2003:

State Reparation Fund S15.00

It is also ordered that the Construction Fund fee for all existine and new cases filed

be incr cased to $11.00 also effected Septcmber 26, 2003.I

IT IS SO ORDERED.

Spread on the Berea Municipal Court 7ournal

Volume 2003 Page 6^

EXHIBtT

^ A^

STATE OF OHIO

COTJNTY OF CUYAHOGA

CITY OF BEREA))


I


JOURNAL ENTTRY

OCTOBER 21, 2003

Effective September 26, 2003, IT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

StateVictims

Court CostsComputer MaintenanceComputer FeeConstruction Fund

Basic costs:

S 15.009.00

45.0010.00

5.0011.00

S 95.00

The charges listed below have an additional Court Cost charge of $25.00AssaultAssault on a Police OfficerCarrying a Concealed WeaponChild EndangeringComplicityCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the Influence of AlcoholDriving While Under SuspensionDrug ChargesDrug ParaphernaliaFalsificationFleeing a Police OfficerImportuningIrnproper Handling of a Firearmlndecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacingObstructing Official BusinessPhysical Control of a Motor VehiclePossession or Use of Alcohol-UnderageReckless Operation of a Motor VehicleResisting ArrestSexual ImpositionSo].i citing/Prostituti onStalkingT"heft

EXHIBIT

47

i

V andalismViolatiiig Temporary Protection OrderTelephone HarassmentUnauthorized Use of a Motor VehicleVoveurism

OTHER BASIC COSTS:AppealBailiff Fees: (minimunl)BondCapiasChange of PleaCertified Joumal EntryCompactContinuanceCopies: (.10/each, minimum)Expungement: City/StateImmobilization: (Inside Jurisdiction)


I


CityLicense ForfeitureLicense ReleaseMotion for Drivin-, PrivilegesNSF Check FeeOffsite Retrieva]Probation: Pre-Sentence IQFirst year Investigation

Amiual ProbatioriInactive Probation

ReductionRecord SearchReprint Drivin-, Privile.-esSubpoena: Issue

ServeTime to PayWarrantRelease Warrant Block11BE IT SO ORDERED IN ACCORDANCB WIT

$75.005.005.00

20.005.005.00

25.0010.00

1.0075.00

300.00350.00

75.00100.0025.0025.0025.0015.0045.0025.0025.0075.00

125.0050.0025.0065.00

5.0015.0010.00

1.0020.0050.001.,.00

Spread on the Berea Municipal Court JournalVolume 2003 Page `7 C1 A

STATE OF OHIO

COUNTY OFCUYAHOGA

CITY OF BEREA


BEREI UNICIPAL COURT

JOURNAL ENTRY

,iUNE 2. 2004

Effective June 2, 2004, IT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Court shall he modified as follows:

StateVictimsCourt CostsComputer MaintenanceComputer FeeConstruction FundProcessing Fee

Basic costs:

$1^.009.00

56.005.005.005.00?.00

$97.00

The charees listed below have an additional Court Cost charge of $25.00

AssaultAssault on a Police OfficerCarrying a Concealed WeaponChild EndangeringComplici yCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the Influence of AlcoholDriving While Under SuspensionDrug ChargesDrug ParaphernaliaFalsificationFleeina a Police OfficerImportuningImproper Handling of a FirearmIndecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacingObstructing Official BusinessPhysical Control of a Motor VehiclePossession or Use of Alcohol-UnderageReckless Operation of a Motor VehicleResisting ArrestSexual ImpositionS o 1 i citing/P ro stituti onStalking

TheftVandalismViolating Temporary Protection OrderTelephone HarassrrientUnauthorized Use of a Motor Vehicle

EXHIBIT

Voyeurism

OTHER BASIC COSTS:AppealBailiff Fees: (minimum)BondCapiasChanRc of PleaCertified Joumal EntryCompactContinuanceCopies: (.10/each, minimum)

Expungement: City/State

Immobilization: (Inside Jurisdiction)(Outside Jurisdiction)


CityLicense ForfeitureLicense ReleaseMotion for Drivinp PrivilegesNon-ComplianceNSF Check FeeOffsite RetrievalProbation: Pre-Sentcnce Investigation

Basic ProbationMonitored ProbationIntensive ProbationProbation each additional year

ReductionRecord SearchReprint Driving PrivilegesSubpoena: Issue

ServeTime to PayW arrantRelease Warrant BlockFirst Offender ProgramDUS Program

BE IT SO ORDERED IN ACCORDANCE WITH O4t-r,)

R?A MO J. VJ^HLClGERK C T

Spread on the Berea MunicVolume 2004 PaQe

al Court Journal

KXfKX. COAA

S125.005.005.00

20.005.005.00

25.0010.00

1.0075.00

300.00350.00

75.00100.0025.0025.0025.0015.0045.00

100.0025.0025.0075.00

125.0075.00

175.0050.0075.00

5.0025.0010.00

1.0025.0050.0015.00

100.00100.00

STATE OF OHIO j BERE.A M' rNICIPAL COURT1

COLNITY OF CUYAHOGA 1 JOURNAL ENTRY

CITY OF BEREA ) JANUARY 3. 2005


Effective February 1, 2005, IT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Coui-t shall be modified as follows:

State General Revenue FundVictims of Crime FundGeneral Court CostsComputer Maintenance FundComputer Research FundConstruction FundProcessing Fee

Basic costs:

$15.009.00

56.007.00:.00

15.00L 00

$107.00

The charges listed belom, have an additional Court Cost charge of $25.00Assault

Assault on a Police Officer

Carrying a Concealed WeaponCliild EndangeringComplicity

Corruption of a MinorCriminal MischiefDomestic ViolenceDrag Racing

Driving Under the I ifluence of AlcoholDriving While Under SuspensionDrug Charges

Drug Paraphernalia

FalsificationFleeing a Police Officer

Importuninglmproper Handling of a Firearm

Indecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacing

Obstructing Official Business

Physical Control of a Motor VehiclePossession or Use of Alcohol-UnderageReckless Operation of a Motor VehicleResisting Arrest

Sexual ImpositionSol icitin Q/ProstitutionStalkingTheftVandalismViolating Temporary Protection OrderTelephone HarassnientUnauthorized Use of a Motor VehicleVoveurism

EXHIBIT

OTHER BASIC CO, a:Appea]BailiffFees: (minimum)BondCapiasChange of PleaCertified Journal EntryCompactContinuanceCopies: (.10/eaeh, minimum)Expungement: City/StateImmobilization: (Inside Jurisdiction)

(Outside Jurisdiction)Jury DemandJury SummonsJuror: State

CityLieense ForfeitureLicense Re]easeMotion for Driving PrivilegesMotion for Restricted Plate RemovalNon-ComplianceNSF Check FeeOffsite RetrievalProbation: Pre-Sentence Invest]?at7on

Basic ProbationMonitored ProbationIntensive ProbationProbation each additional yearReschedule Probation Appointment

ReductionRecord SearchReprint DrivinL PrivilegesSubpoena: Issue

ServeTime to PayW airantRelease Warrant BlockFirst Offender ProgramDUS Pro--ram

BE IT SO ORDERED IN ACC:ORDANCE V

S125.00^.00^.00

30.005.00J.00

25.0010.00

1.0073.00

i00.00350.00

75.00100.00

25.0025.0025.0015.0045.0025.00

100.0025.0025.0075.00

125.0075.00

175.00i0.0025.0075.00

5.0025.0010.00

1.0025.0050.0015.00

100.00100.00

A. CO.P<1ISTOCK, JUDGE =

Spread on the Berea Municipal Coui-t JournalVolume 2005 Page p `r

aLY.I LVr vniU

COUNTTY OF CUYAHOGA

CITY OF BEREA

in re: Traffic/Criminai Division Court Costs

Li.iwn , . ^- , , ... .....^...

JOURNAL ENTRY

SEPTEMBER 16. 2005

Effective October 1, 2005, iT IS HEREBY ORDERED that basic court costs in theTraffic/Criminal Division of the Berea Municipal Court shall be modified as follows:

State General Revenue Fund $15.00Victims of Crime Fund 9.00General Court Costs 56.00Computei- Maintenance Fund 7.00Computer Research Fund 3.00Construction Fund 15.00Processing Fee 2.00Cuyahoga County Regional Information System (C.R.1.S.) Fee 5.00

Basic costs: $112.00

The charges listed below have an additional Court Cost charge ofAssaultAssault on a Police OfficerCarrying a Conceaied WeaponChild EndanaeringComplicityCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the Influence cf AlcoholDriving While Under SuspensionDrug ChargesDrug ParaphernaliaFalsificationFleeing a Police Officer

ImportuningImproper Handling of a FirearmIndecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacingObstructing Official BusinessPhysical Control of a Motor VehiclePossession or iise ofAicohoi-iinderaeeReckless Operation of a Motor VehicleResisting ArrestSexual ImpositionSol i citin glProstituti onStall:ingTheftVandalismViolating Temporary Protection OrderTelephone Harassment

Unauthorized Use of a Motor VehicleVoyeurism

$25.00

V 1 iYY.K t5!1al l. l.l .l:

Appeal

Bailiff Fees: (minimum)BondCapiasChance of PleaCertified Journal Entr_yCompactContinuanceCopies: ( .10/each, minimum)Expungement: Ciry,'StateImmobilization: (Inside Jurisdiction)

(Outside Jurisdiction)Jury DemandJury SummonsJuror: State

CityLicense ForfeitureLicense ReleaseMotion for Driving PrivilegesMotion for Restricted Plate RemovalNon-ComplianceNSF Check FeeOffsite RetrievalProbation: Pre-Sentenc.e Investivation

Basic ProbationMonitored ProbationIntensive ProbationProbation each additional yearRescheduie Probation Appo+.ntment


ServeTime to PayWarrantRelease Warrant BlockFirst Offender ProgramDUS Program

BE IT SO ORDERED iN ACCORDANCE WTTUr, ,g^^_.^

$1'_'5.005.005.00

20.005.005.00

25.0010.001.00

75.00300.00350.00

75.00100.0025.0025.0025.0015.0045.0025.00

100.0025.00_5.0075.00

125.0075.00

175.0050.0025.0075.00

5.0025.0010.001.00

25.0050.0015.00

100.00100.00

s7 177 %(i l

COMOOCK, JJDC:E

'YiviO D .1ERKdF'eO

Spread on the Berea Municipal Court JoumalVolume 2005 Page 25

VOI^IL

lJ

S1A1bUYUriIU

COUNTY OF CUYAHOGA

CITY OF BEREA


tit3tCt.A lVl!' ll.LrtlL L.vUnl

JOURNAL ENTRY

JUNE 23. 2006

Effective July 2, 2006, IT IS HEREBY ORDERED that basic court costs in the Traffic/CriminalDivision of the Berea Municipal Court shall be modified as follows:

State General Revenue Fund $15.00Victims of Crime Fund 9.00General Court Costs 50.00Computer Maintenance Fund 7.00Computer Research Fund 3.00Construction Fund 30.00Processing Fee 2.00Cuyahoga County Regional Information System (C.R.I.S.) Fee 5.00

Basic costs: $121.00Crime Stoppers: Misdemeanor/Felony 1.00

The charges listed below have an additional Court Cost charge of $25.00

AssaultAssault on a Police OfficerCarrying a Concealed WeaponChild EndangeringComplicityCorruption cf a MinorCriminal MischiefDomestic ViolenceDrag PacingDriving Under the Influence of AlcoholDriving While Under SuspensionDrug ChargesDrug ParaphernaliaFalsificationFleeing a Police OfficerImportuningImproper Handling of a FirearmIndecent Exposure/Public IndecencyLeaving the Scene of a Motor Vehicle AccidentMenacingObstructing Official BusinessPhysical Control of a Motor VehiclePossession or use of.Alcohol-UnderaeeReckless Operation of a Motor VehicleResisting ArrestSexual ImpositionS o lic itin g/Pro stituti onStalkingTheftVandalismViolating Temporary Protection OrderTelephone HarassmentUnauthorized Use of a Motor Vehicle

Voyeurism

O

OTHER BASIC CU"S:AppealBailiff Fees: (minimum)BondCapiasChanae of PleaCertified Journal EntryCompactContinuanceCopies: (.10/each, minimum)Expungement: City/StateImmobilization: (Inside Jurisdiction)



CityLicense ForfeitureLicense ReleaseMotion for Driving PrivilegesMotion for Restricted Plate RemovalNon-ComplianceNSF Check FeeOffsite RetrievalProbation: Pre-Sentence Investigation

Basic ProbationMonitored ProbationIntensive ProbationProbation each additional yearReschedule Probation Appointment


ServeTime to PayWarrantRelease Warrant BlockFirst Offender ProgramDUS Program

p,i rT cn nRnEPFD ptr ArrnP?^,ol.irE ^xr1T

MARK ^"i. CQ?^

OF COUKI

read on the Berea Munici ] Court JoumalVolume 2006 Page

$125.005.005.00

20.005.005.00

25.0010.00

1.0075.00

300.003 50.00

75.00100.00

25.0025.0025.0015.0045.0025.00

100.0025.0025.0075.00

125.0075.00

175.0050,0025.0075.00

5.0025.0010.00

1.0025.0050.0015.00

100.00100.00

Berea Municipal CoLU-t - Traffic/Criminal Court Costs

Oayment Center

Traffic/Criminal Costs

Make Payment

Civil/Small Claims Costs

Page 1 of 2

Information Court OfPicials Departments Case/Docket Information Payment Center Home

Traffic/Crimina! Court Costs

TRAFFIC/CRIMINAL COURT COSTS

Court Costs 116.00 Bond

Capias 20.00 Certified JEContinuance 10.00 License ForfeitureMiscellaneous Warrant 50.00 CompactChange of Plea 5.00 License Release

DUTA/Assault 25.00 Expunge/City* See attached list Expunge/State

Reduction 75.00 Offsite RetrievalIssue Subpoena 10.00 Release WarrantServe Subpoena 1.00 Immobilize vehiclFBailiff Fee min $5.00 Pre SentencingState Witness Fee $6.00 per day plus $.10 per mi. Basic ProbationCity Witness Fee $6.00 per day plus $.10 per mi. Annual ProbationState Juror 25.00 AppealCity Juror 25.00 Reprint PrivilegesMonitored Probation 75.00 Jury DemandMotion for Driving Privileges 45.00 Jury SummonsTime to Pay 20.00 Copies

* Additional Court Cost of $25 added to ali charges iisted belowAssaultAssault on a Police OfficerCarrying a Concealed WeaponChild EndangeringComplicityCorruption of a MinorCriminal MischiefDomestic ViolenceDrag RacingDriving Under the Influence of AlcoholDriving While Under SuspensionDrug CiYdrgesDruo Paraohernalia

FalsificationFleeing a Police OfficerImportuning

Improper Handling of a FirearnIndecent Exposure/Public Inde,Leaving Scene of a Motor VehiMenacingObstructing Official BusinessPhysical Control of a Motor VelPossession or Use of Alcohol-tReckless Operation of a MotorResisting ArrestSexual ImpositionVandalismViolating Temporary ProtectionTelephone HarassmentUnauthorized Use of a Motor VVoyeurism

EXHIBIT

e

ittp://www.Uereati7unicourt.org/info.asp?pageId=19 11/6/2006

EXHIBIT

i el

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO


Plaintiffs

vs.

STATE OF OHIO

Defendant

)STATE OF OHIOCUYAHOGA COUN T Y j ss

))

Case No. 564761

Judge Ambrose

AFFIDAVIT OF COLLEEN COYNE,DEPUTY CLERK (SUPERVISOR,CRIMINAL DIVISION)OF BEREA MUNICIPAL COURT

Now comes Colleen Coyne, being duly sworn according to law, and based upon

personal knowledge and belief, and states as follows:

1. I am the Deputy Clerk (Supervisor, Criminal Division) of the Berea Municipal Court

and have served in this position since 1994. I keep the records for the criminal and traffic

divisions of the Berea Municipal Court.

2. Attached hereto are the certified records of the Berea Municipal Court Clerk's Office

kept in the ordinary course of business of the Berea Municipal Court related to Case No. 04

TRC 03862 involving Defendant William C. Glick.

3. Said Defendant had two traffic charges arising from the same incident (Lanes

Violation and OVI) and he pled to an amended charge of Reckless Operation with the original

two charges being dismissed at the Defendant's costs.

4. Said Defendant paid a fine and court costs upon conviction. Defendant was charged

court costs that included only one assessment of costs for $15.00 allocated to the State

Revenue Fund and one assessment of costs for $9.00 allocated to the State's Victims of Crime

Fund per O.R.C. 2949.09(A) and 2743.70(A), respectively.

5. Defendant William C. Glick was charged by the Berea Municipal Court only once for

the $15.00 State Revenue Fund charge and $9.00 for the State Victims of Crime Fund charge in

the. case irrespective of the number of offenses or charges issued against him arising out of the

same incident, transaction or occurrence.

6. In every criminal and/or traffic case resolved in the Berea Municipal Court where a

Defendant is found guilty of one or more charges arising out of the same incident, transaction or

occurrence, such Defendant is assessed only one $15.00 charge for the State Revenue Fund

and only one $9.00 charge for the State Victims of Crime Fund regardless of the number of

charges issued against such Defendant and regardless of the number of charges to which the

Defendant was found guilty, so long as all such charges arose out of the same incident,

transaction or occurrence.

7. During the entire time that I have served in my capacity as Deputy Clerk (Supervisor,

Criminal/Traffic D.v,s:on) for the Berea Municipal Court clerk of Court, it has never been the

practice of the Berea Municipal Court Clerk of Court to charge any Defendant more than once

per case with the $15.00 fee mandated under O.R.C. 2949.091(A) or the $9.00 fee mandated

under O.R.C 2743.70(A).

Further affiant sayeth naught:

Colleen Coyne, Deputy ClerkSupervisor, Criminal/Traffic DivisionsBerea Municipal Court

Sworn to and subscribed in my presence this day of March, 2006.

NOTARY PUBLIC

My commission expires:

15E1,1LA IV1 U IV 1l;lYAL l. U U 1C 1

as of 8-Mar-2006 3:34 pm I 1 BEREA COMMONSBEREA, OHIO 44017

04TRC03862

Defendant........ :, GLICK, WILLIAM C4387 FAIRWAYCLEVELAND, 014 44135

CASE 04TRC03862 DOCKET

GENERAL INFORMATION

Page I of 4

- 04TRC03862

Date Filed: 0812712004

Heard By: Judge MARK A, COMSTOCK

DOB: 08/16/1973 Drivers License: OH RM736776

License Susp : 08/22/2004 thru 08/22/2005 Must Present Document BMV Batch: 041605

Court Date: SENTENCE Set for 04/15/2005 at 1:30 pm in Court Room 3INCIDENT

Incident #: 56604 FRA: Yes Agency: MIDDLEBURG HTSCitation #: MH114292 Offense Date: 08/22/2004 Affiant: SGT. R. SWANSON

Offense: Ordinance 434.02 - RECKLESS OPERATION - Deg: M2 - Moving Violation - at RICHS TOWINGAmendedfrom: Ordinance 434.01A1 on 12/09/2004

Plea: GUILTY Finding: (04-15-05) GUILTY Fine:450+COSTS W/DRV_PRIV Points:4 By: Judge MARK A.COMSTOCK

Offense: Ordinance 432.08A - CONT. LANES/WEAVING - Deg: M4 - Moving Violation - at RICHS TOWINGPlea: NOT GUILTY Finding: (04-15-05) DISMISSED - DEF COST W/DRV_PRIV Points:2 By: Judge MARK A.COMSTOCK

BOND INFORMATION

Date Set: Tvpe: Posted Amt. Posted: Amount: St^R: Bond #: Return/Anply/Transfer/Forfeit Check #:

08/27/04 CASH $50.00 08/27/04 $50.00 $0.00 A: $50.00

Posted by: WILLIAM C GLICK

2082 CARABEL LAKEWOOD, OH 44107

CASE PROCEEDINGS.

Entered Charge EntrvText

08/27/2004 Right to speedy trial waived by defendant on 08/27/2004

08/27/2004 Case Filed on 08/27/2004

ARRAIGNMENT set for 08/27/2004 at 09:00 AM in room 1

08/27/2004 HECTOR G. MARTINEZ filed notice of appearance

08/27/2004 1 Plea of NOT GUILTY entered on 08/27/2004

08/27/2004 2 Plea of NOT GUILTY entered on 08/27/2004

08/27/2004 Modified Bond to CASH BOND Bond Set for $50.00

08/27/2004 BOND POSTING FEE - CASH of $5.00 assessed

08/27/2004 Posted bond, paid $50.00 receipt#2004101557

08/27/2004 1 MAYORS COURT TRANS/PNG/WSP 10% BOND FOR 50. POSTED BY SELF,ATTY HECTORG. MARTINEZ

09/03/2004 Paid $45.00 receipt# 2004307380

09/03/2004 def requesting driv. priv. set for 09/07/2004 1:30pm

09/03/2004 ALS COURT DISPOSITION notice sent

09/07/2004 MOTION FOR DISCOVERY filed by Defendant's Attomey on 09/07/2004 (ANDINSPECTION AND PUBLIC RECORDS REQUEST)

09/07/2004 Special Drivers Permit notice sent

09/07/2004 ALS HAD APPEAL DENIED OCC GRANTED (IYR)

09/13/2004 PRE-TRIAL set for 10/14/2004 at 08:30 AM in room 2 by Judge MARK A.COMSTOCK

1f EKP:A M U 1N 1laYAL (,: )U K 1

as of 8-Mar-2006 3:34 pm 11 BEREA COMMONS Paoe 2 of 4BEREA, QHIO 44017


09/13/2004

10/14/2004

10/20/2004

10/20/2004

12/09/2004 1

12/09/2004 1

12/09/2004 2

12/09/2004

1

Hearing Card w/attorney notice sent

SET FOR TRIAL, PDK.

TRIAL set for 12/09/2004 at 02:45 PM in room 2 by Judge MARK A. COMSTOCK on10/20/2004Hearing Card w/attorney notice sent

Plea of GUILTY entered on 12/09/2004

CHANGE OF PLEA P/NC, F/G, REFER TO PSI.

DISMISSED AT DEF COST.

MOTION TO AMEND of $75.00 assessed

Charge Amended from 434.01A1 DUI to 434.02 RECKLESS OPERATION byProsecutor on 12/09/2004

12/20/2004 SENTENCE set for 02/25/2005 at 01:30 PM in room 3 by Judge MARK A.COMSTOCK on 12/20/2004

12/20/2004 Hearing Card w/attorney notice sent

02/16/2005 MOTION TO CONTINUE filed by Defendant's Attorney on 02/16/200502/16/2005 MOTION TO CONTINUE GRANTED by ASSIGNMENT on 02/16/2005

02/16/2005 Canceled SENTENCE for 02/25/2005 at 01:30 Plvi in room 3 by Judge MARK A.COMSTOCK on 12/20/2004

02/17/2005 SENTENCE set for 04/15!2005 at 01:30 PM in room 3 by Judge 1•/ARK A.COMSTOCK on 02/17/2005

02/17/2005 Hearing Card w/attorney notice sent

04/15/2005 DEF SENT TO 1 YR BASIC PROBATION; 3 DAYS JAIL OR 72 HOUR DDS INLIEU OF 3 DAYS JAIL; OL SUSP 1 YRS; DP TO/FROM WORK, AA, PROBATION;2 AA WK FOR 16 WKS; NO SAME/SIMILAR ALCOHOL OFFENSES; FAILURETO COMPLY, MAX PENALTY IMPOSED.

04/15/2005 1 Assigned Suspension Class: 5 - 6 Months to 3 Years

I License Suspended for 365 days

I Modification granted for suspended license

04/15/2005 PG/FG/FINE 450+C

04/15/2005 CASH BOND Bond# disbursed ($50.00 applied,$0.00 returned, $0.00 transferred,$0.00 forfeited) receipt# 2005302988

04/15/2005 Paid $910.00 receipt# 200530298906/27/2005 Paid $25.00 receipt4 200530526308/30/2005 ALS COURT DISPOSITION notice sent

09/28/2005 PLACED ON MONITORED PROBATION. TERMINATE ON 7/29/06. COMPLETEDALL REQUIREMENTS.

Date

08/27/2004

FINANCIALS

Bords Assessed Paid/Credif Receipt Number

S50.00 $0.00 $0.00 2004101557

BONDS HELD $50.00 $0.00 0.00

09/03/2004 $0.00 $45.00 $0.00

1 M OCCUP DR PRIV $0.00 $45.00 0.00

15 LKLA 1VI U 1N 1 CIYAL l. V U K I

as of 8-Mar-2006 3:34 pni I1 BEREA COMMONSBEREA, OHIO 44017

Pa2e 3 of 4


09/03/2004 $0.00 $0.00 $45.00 2004307380

M OCCUP DR PRIV $0.00 $0.00 45.00

12/09/2004 $0.00 $75.00 $0.00

MOTION TO AMEND $0.00 $75.00 0.0004/15/2005 $0.00 $885.00 $0.00

STATE REVENUE FUND $0.00 $15.00 0.00VICTIMS OF CRIME $0.00 $9.00 0.00BOND FEE $0.00 $5.00 0.00COURT COSTS $0.00 $56.00 0.00COURT COSTS $0.00 $25.00 0.00COMPUTER MAINT FEE' $0.00 $7.00 0.00COMPUTER RES FEE T/C $0.00 $3.00 0.00CONSTRUCTION FUND T $0.00 $15.00 0.00COURT PROCESSING FE $0.00 $2.00 0.00CHANGE OF PLEA $0.00 $5.00 0.00PRE-SENTENCING INVEf $0.00 $75.00 0.00MH - fines collected $0.00 $450.00 0.00BASIC PROBATION $0.00 $125.00 0.00CONTINUANCE $0.00 $10.00 0.00

2 COURT COSTS $0.00 $56.00 0.002 COMPUTER MAIIjT FEE' $0.00 $7.00 0.002 COMPUTER P.ES.FEE T/C $0.00 $3.00 0.00

2 CONSTRUCTION FUND T $0.00 $15.00 0.002 COURT PROCE-SSLNG FE $0.00 $2.00 0.00

04/15/2005 ($50.00) $0.00 $50.00 2005302988

STATE REVENUE FUND $0.00 $0.00 15.00VICTIMS OF CRIME $0.00 $0.00 9.00BONDSHELD ($21.00) $0.00 0.00BONDS HELD ($15.00) $0.00 0.00BONDSHELD ($9.00) $0.00 0.00BONDSHELD ($5.00) $0.00 0.00BOND FEE $0.00 $0.00 5.00COURT COSTS $0.00 $0.00 21.00

04/15/2005 $0.00 $0.00 $910.00 2005302989

COURT COSTS $0.00 $0.00 60.00COMPUTER MAINT FEE' $0.00 $0.00 7.00COMPUTER RES FEE T/C $0.00 $0.00 3.00CONSTRUCTION FUND T $0.00 $0.00 15.00COURT PROCESSiNG FE $0.00 $0.00 2.00CHANGE OF PLEA $0.00 $0.00 5.00PRE-SENTENCING DvVE: $0.00 $0.00 75.00MOTION TO AMEND $0.00 $0.00 75.00MH - fines collected $0.00 $0.00 450.00BASIC PROBATION $0.00 $0.00 125.00CONTINUANCE $0.00 $0.00 10.00

2 COURT COSTS $0.00 $0.00 56.00

2 COMPUTER MAINT FEE' $0.00 $0.00 7.002 COMPUTER RES FEE T/C $0.00 $0.00 3.002 CONSTRUCTION FUND I $0.00 $0.00 15.002 COURT PROCESSING FE $0.00 $0.00 2.00

06/27/2005 $0.00 $25.00 $0.00

BEREA MUNICIPAL COURTas of 8-Mar-2006 3:34 pm 11 BEREA COMMONS Page 4 of 4

BEREA, OHIO 44017


1 DRIVING SCHOOL $0.00 $25.00 0.00

06/27/2005 $0.00 $0.00 $25.00 2005305263

I DRIVING SCHOOL $0.00 $0.00 25.00Total as of 03/08/06 : $0.00 $1,030.00 $1,030.00 $0.00 I OWES

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IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

MICHAEL LINGO, et al.,

Plaintiffs,

-vs-

STATE OF OHIO,

Defendant.

JUDGE AMBROSE

CASE NO. 564761

Deposition of COLLEEN P. COYNE, taken as if

upon direct examination before Lynn D. Thompson,

a Notary Public within and for the State of Ohio,

the offices of Bashein & ashein, 3500

Terminal Tower, 50 Public Square, Cleveland,

Ohio, at 9:40 a.m. on Thursday, May 4, 2006,

pursuant to notice and/or stipulations of

counsel, on behalf of the Plaintiffs in this

cause.

MEiiLER & HAGESTROiI

(`niirt Reporters

CLEVELAND

1750 Midland Building

Cleveland, Ohio 44115

216.621.4984FAX 621.0050800.822.0650

AKRON

1015 Key Building

Akron, Ohio 44308

330.535.7300FAX 535.0050800.562.7100

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APPEARANCES:

W. Craig Bashein, Esq.

Bashein & Bashein

3500 Terminal Tower

50 Public Square

Cleveland, Ohio 44113

(216) 771-3239,

On behalf of the Plaintiffs;

Frank M. Strigari, Esq.

Assistant Attorneys General

Constitutional Offices Section

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-2872,

On behalf of the Defendant;

Gregory M. Sponseller, Esq.

Director of Law

City of Berea11 Berea CommonsBerea, Ohio 44017(440) 826-5831,

On behalf of the Witness.

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W I T N E S S I N D E X

PAGE

DIRECTEXAMINATION

COLLEEN P. COYNE

BY MR. BASHEIN 4

CROSS-EXAMINATION

COLLEEN P. COYNE

BY MR. STRIGARI 20

E X H I B I T I N D E X

EXHIBIT PAGE

Plaintiffs' Exhibit 1,

Colleen Coyne, Deputy

(Supervisor, Criminal

Berea Municipal Court

Affidavit OfClerkDivision) Of

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Plaintiffs' Exhibit 2, certified copyof Berea Municipal Court record 18

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COLLEEN P. COYNE, of lawful age, called by

the Plaintiffs for the purpose of direct

examination, as provided by the Rules of Civ=1

Procedure, being by me first duly sworn, as

hereinafter certified, deposed and said as

follows:

DIRECT EXAMINATION OF COLLEEN P. COYNE

BY MR. BASHEIN:

Q. Is it Ms. or Mrs.?

A. Mrs.

Q. Mrs. Coyne, my name is Craig Bashein, and I

represent Michael Lingo and other proposed class

members in a case pending against the State of

Ohio. It's my understanding that one of the

individuals that's a proposed class member

against the state was involved.in a case with

Berea Municipal Court by the name of William

Glick. It's my understanding that you've brought

with you a file or -- clerk of courts file that

would pertain to that case, and I know that

you've also signed an affidavit that was orepared

that.I've been previously provided with.

I'm going to ask you some questions. I don't

think it's going to be very long. I want to

verify the accuracy of the affidavit you

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provided, just have you go over with me some of

the documents that I received to confirm what

type of costs were assessed in that particular

case. The questions are not designed to trick

you or mislead you. So if I ask something that

doesn't make sense, just stop and let me know,

and we will restate the question for you so you

do understand it.

A. Okay.

Q. You'll let me know if you don't understand a

question?

A. I will.

Q. If you answer the question, I'm going to assume

vou understood it and gave the most complete and

accurate response you were capable of giving

today. Fair assumption?

A. Yes.

Q. Give me your full name for me.

A. Colleen Coyne.

Q. And your title with the City of Berea?

A. Supervisor, traffic criminal department.

Q. And how long habe you been doing that?

A. 27 years.

MR. BASHEIN: Off the record.

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(Thereupon, a discussion was had off _

record.)

Q. And y.our duties as supervisor in the traffic

criminal department, could you describe those for

us?

A. Day to day records. Keeping records of corporate

proceedings. Collecting fines and costs.

Q. Are there procedures that the city uses for the

assessment of particular court costs in a

particular case? Like a written protocol?

A. Yes.

Q. And are those written procedures or are they just

programmed into the software where it's done

automatically?

A. Both.

Q. And in terms of the written procedures, do you

have access to those? Are those with you today

at all?

A. I have a listing of all the court costs that can

be assessed in a case.

Q. Okay.

A. It's the journal entry signed by Judge Comstock.

Q. And that would be setting the fee schedule so to

speak?

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A. Correct.

0. And from the affidavit, i_t appears that you're

aware of the subject of this lawsuit, what's at

issue, the type of court costs that's at issue?

A. Correct.

Q. And you are familiar with the allocation of costs

associated with the state revenue fund that would

be sent to the State of Ohio?

A. Yes.

Q. And that is a $15 charge; is that correct?

A. For the general fund, yes.

0. And there is also a charge for the state victims

of cri..,e fund for $9; is that correct?

A. Correct.

Q. And that is also listed as one of the code

numbers on the fee schedule signed by the court?

A. Correct.

Q. And I take it from your affidavit that it's your

testimony that the City of Berea will only charge

the state revenue fund and the victim cf crime

fund on one time per each defendant even though

they may have one or more cases arising out of

the same transaction?

A. Correct.

Q. And is that listed on that form, that it's only

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done once or is it just coded as a separate --

A. Not listed on this, no.

Q And how would that be implemented following that

procedure that you're only going to charge it

once? Is it built into the software?

A. Yes. When you open a file, it knows on the first

count, take that. Second, third, fourth counts,

do not include that.

Q. It does not charge. Okay. So that's

preprogrammed, and then when somebody walks up to

the window, the computer then would charge them

on the first count but not any subseauert counts?

A. Correct.

Q. Are there any court costs charged to defendants

on second, third, fourth counts if they're

convicted?

A. Yes.

Q. What court costs would those be?

MR. SPONSELLER: I'm going to

object to that question. It's outside the

scope of the lit_igation.

Q. You can go ahead.

A. Go ahead?

Q. Yeah. He's just putting an objection on the

record.

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A. Okay.

General court costs. Computer maintenance

fund. Comouter research fund. Construction

fund. And now a newly charged effective I think

October is the C.R.I.S. fee if it's a traffic

case.

Q. What's a C.R.I.S. fee?

A. For the C.R.I.S., the computer system.

Q. And how much are the general court -- did you say

there's a general court cost or

A. General court costs.

Q. And how much is that on subsequent counts?

A. $56.

Q. So that's per _^di:idual case number? Per

charge?

A. Per count.

Q. And how about the computer maintenance fund?

A. The computer maintenance, the research and the

construction are on all counts.

Q. I'm sorry?

A. On all counts.

Q. Okay. And how much is that? Start with the

computer.

Computer niaintenance is 7. Computer research is

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Q. And those would be the same on each count no

matter whdt the offense?

A. Correct.

Q. How long have you been the supervisor of traffic?

A. 13 years.

Q. Do you have in front of you a copy of the -- his

file? I know it would be in a little different

form than I have it.

A. This is the original file. I don't have a copy

of it, but this is the original.

Q. Take a look at the original. I'm just going to

go through just a couple just to try to identify

where those charges occurred in the counts that

he was convicted of. How many counts was this

Mr. Glick charged with?

A. Two.

Q. And the two counts were specifically what?

A. DUI and continuous lanes.

Q. And the DUI, was this an ORC offense?

A. No. It was a city code.

Q. And how about the continuous lanes?

A. City code.

Q. Was he charged with any state offenses in this

case?

A. No.

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And where -- what document do you have that would

show -- first of all -- strike that.

Was he convicted on both counts?

The continuous lanes was dismissed.

Q•

A.

Q. Nullied?

Nullied.

Okay.

And his court cost.

And his cost?

A.

Q•

A.

Q•

A.

Q•

Any other charges on the nullied count?

Uh-huh.

P.11 right. So he would have paid on the count

that was nullied the 56, 7, 3, 15?

A. Right.

Q..

A. You know what? Did I include -- there's a

processing fee. I don't know if I included that

on the other one.

Q. Not too late. How much is the processing fee?

A. $2.

So he would have paid on the nullied charge 56,

7, 3, 15 and 2?

Q.

Any other charges on the count that was

dismissed?

A. Correct.

Q•

A. No.

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1 Q• All right. And on the count that he was

convicted of the DUI --

MR. SPONSELLER: Objection. Just

for clarification, she didn't say he was

convicted of the DUI.

MR. BASHEIN: Oh. I'm sorry. I

apologize. I guess I'm getting a step --

Was he convicted of the DUI?

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A. No.

Q. Okay. What was he convicted of?

A. He was convicted of reckless operation.

Q. So the DUI was reduced?

A. Yes.

Q. And he was convicted of a reckless op?

A. Correct.

Q. And the court costs that he had to pay as a

result of that conviction, would it have been the

56 for the general court costs?

A. I'm just going to check these off as you --

Q. $7 for the computer maintenance fund?

A. Right.

Q. $3 for the computer research fund?

A. Uh-huh.

Q. 15 for the construction fund. $2 processing fee.

And then the state -- would the state have

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received any fees for the victims of crime or the

revenue fund?

Yes.

Okay. So he would have paid $9 for victim of

crime and 15 for the revenue fund; is that

correct?

Yes.

Anv other costs as a result of that conviction?

(Thereupon, a discussion was had off the

record.)

MR. SPONSELLER: If I may?

MR. BASHEIN: Yeah.

MR. SPONSELLER: Are you referring

specifically to the payment of those court

costs, the 15 and 9 on the RO charge or are

you referring to the 15 and 9 on the

original DUI charge?

MR. BASHEIN: Either one.

If it was charoed, just clarify what it was

charged on.

MR. SPONSELLER: Yeah. Explain to

him.

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Would you explain to him how the

$15 and $9 were charged and paid by this

defendant and under what case.

A. Okay. When the DUI was reduced, it remained one

case. We didn"t open -- we don't open a third

file. So it was assessed on this first count.

Q. On the case number that related to the DUI?

A. Correct.

Q. Even though the conviction itself was a reckless

op?

A. Correct.

Q. And with that understanding, all of the court

costs I just went over were paid on that original

case, the 56, the 7, 3, 15, 2 and then the 9 and

15?

A. Yes.

Q. Any other costs assessed on the original case

that resulted in a reckless op conviction?

A. Yes.

Q. What other ones?

MR. SPONSELLER: Objection

continuing on that. Go ahead.

A. There's a $5 bond fee.

Q. Okay.

A. A change of plea. $5. He was referred to the

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probation for a presentence investigation.

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That's a $75 fee. At the sentence, he was p'_aced

on basic probation, which is a 125 fee. And then

there was a $10 continuance.

And those last five charges you talked about, a

bond fee, change of plea fee, PSI fee, probation

fee and a continuance fee, were those charged

only on the original count?

k. Correct.

Those would not be typically charged on

subsequent counts?

No.

And that would be the practice in the last 13

years; that the city would not charge those fees

we just discussed a second time or a third time?

A. Yes. Correct.

Q. You prepared an affidavit in this case or at

least signed an affidavit; is that correct?

A. Correct.

Q. And this was prepared at some point by counsel

and given to you to sign?

A. Yes.

Q. And you reviewed it?

Yes.

Made sure it's accurate?

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A. Yes.

Q. Signed it?

A. Yes.

Q. Correct? All right.

MR. BASHEIN: Lynn, have you got a

sticker on you.

(Thereupon, Plaintiffs' Exhibit 1, Affidavit

Of Colleen Coyne, Deputy Clerk (Supervisor,

Criminal Division) Of Berea Municipal Court,

was marked for purposes of identification.)

Q Okay. Cclleen, I'm going to give you a copy of

what's been marked Exhibit 1. Just if you can

make sure that was the affidavit and your

signature on it.

A. This is correct.

Q. Okay. Could you turn to the computer -- it

appears it was a printout of the cost sheet. Do

you have that handy in the original file?

A. The receipt?

Q. Right.

A. Which receipt number are we looking at?

Q. I have in front of me '989 and '988. Do you have

two?

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1 A. Okay.

Q• And '989 and '988, did these apply to different2

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counts? Or is it just a twe-page summary because

of the length?

A. This one I -- this is when his bond was applied.

He had a $50 bond. So we received that on the

'88 case number. We credited $50, which came

from his bond that he put up at his arrest.

Q. So it would apply to receipt '2988?

A. '88, right.

Q. And then '2989, what does that summarize?

A. That summarizes after the $50 bo;d was applied,

there was a$910 payment made, which was the

balarlce due after the bond was aoulied.

Q. O,kay. And would this apply to both counts?

R. Yes.

Q. So if we went through this, you would see the $56

charged twice, $7 twice, $3 twice, construction

fund twice?

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21 Q. You'd see the $9 once for the victim of crime and

the $15 once for the revenue. Right?22

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A. Yes.

Q. Okay. So this -- have you had a chance to review

this just to make sure it's consistent with what

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we've talked about in terms of the policies of

Berea?

A. Yes.

(Thereupon, Plaintiffs' Exhibit 2, certified

copy of Berea Municipal Court record, was

marked for purposes of identification.)

Q• And I'm going to hand you -- these pages are a

portion of the document, but I've marked as

Exhibit 2 what I was advised would be a certified

copy of the record of the Berea Municipal Court.

Could you just go through that and make sure it's

accurate.

MR. STRIGARI: For the record, can

you count how many pages just to make sure

that I am looking at the same thing, too?

Q. Yeah. Count all the pages.

A. 17.

Q. 17 pages?

A. Yes.

Q. P.nd is this an accurate copy of Mr. Glick's file

of the Berea clerk of courts office?

A. Yes.

Q. And the last two pages of this document, did you

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have a chance to review them to see if they would

reflect accurate charges made to Mr. Glick in the

two counts we've talked about?

This is '88 and '89.

Which is Case No. '88 by the way?

Receipt number?

Receipt number '88. Would that still apply to

both cases or just one of the two?

Both cases.

And '89, the receipt number '89 would apply to

both cases?

COrfeCt.

Okay.

Out of curiosity, are you required to send

the state the 9 and 15 if it's a city offense?

Do you know?

I don't know.

Would it be Berea's practice to charge the 9 and

15 on each conviction, on the first count of each

conviction for each defendant in court regardless

whether it's an ORC charae or a citv code charge?

Correct.

MR. BASHEIN: Okay. I think

that's all the questions I have. I don't

know if Mr. Strigari has any.

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MR. STRIGARI: Can I have about

five or ten minutes just to gather some

thoughts if you don't mind?

MR. BASHEIN: Sure.

(Thereupon, a recess was had.)

CROSS-EXAMINATION OF COLLEEN P. COYNE

BY MR. STRIGARI:

Good morning, Mrs. Coyne. My name is Frank

Strigari. I'm an assistant attorney general. I

represent the State of Ohio in this case. I am

just going to fnllow up with a couple real quick

questions to clarify some issues that Mr. Bashein

was discussing with you earlier.

If there's any confusion you may have with

any of the questions I am asking, please feel

free to stop me, and I'll rephrase it for you and

make the question as easy as possible for you.

Mrs. Coyne, do you have an attorney tilat'S

representing you here today?

A. Yes.

Q. And who is that?

A. Greg Sponseller.

Q. And in your capacity as the supervisor for the

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*_raffic criminal department, have you ever

consulted the attorney general's office reaarding

legal matters in your capacity?

A. No.

Q. Now, going specifically back to the case of

William Glick, which was I think Case No.

04TRC3862, when you reviewed the court costs

assessed to Mr. Glick, how many times was

Mr. Glick assessed the $15 fee that is sent to

the treasurer of the State of Ohio for the

general revenue fund?

A. One time.

0. And in that same case, how many times was

Mr. Glick assessed the $9 fee for the victims of

crime fund that was sent to the treasurer for the

State of Ohio?

A. One time.

Q. And besides the $15 and $9 fee that was assessed

to Mr. Glick in that case, was he assessed any

other fee s th at nt tc the cate cf 0'?wer e Se ♦ ^iv

A. No.

Q. And, Mrs. Coyne, you were reierring to a schedule

of costs, a fee schedule earlier that was issued

back in September of '05. Did you provide us

with a copy of that by chance?

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Q• Would it have been in the packet of information

that you sent to us?

MR. BASHEIN: I don't think it's

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there.

Q. Okay. I don't see it in the packet of

information. Is it possible if I could take a

look at that really quickly?

A. Sure.

Q. I'm going to give this back, to you, Mrs. Coyne:

In that fee schedule, who issues that

schedule of costs to be assessed in court fees

that are filed in the Berea Municipal Court?

A. This is a journal entry signed by the judge.

Q. So Judge --

A. Mark Comstock.

Q. Judge Mark Comstock, he's the one who sets those

fees that are to be collected from the clerk of

court and the municipal court?

MR. SPONSF.LLF'R: If yOll knntq.

L Vcc

Q. If you know. Okay.

A. Well, he

Q. Did someone sign that sched„1e of fees?

A. The judge and the clerk of court.

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Q. So besides the $15 and $9 fees that are required

for the Berea Municipal Court to collect in each

case that's filed in the court, are there any

other costs that you know of that are to be

assessed and sent to the State of Ohio?

A. No, there isn't.

Q. And in your 13 years -- actually, I'm going to

refer you to Exhibit No. 1, which was the

affidavit that you provided to us.

If you could take a look at Paragraph No. 7,

and I'm going to quote that for the record.

^During the entire time that I have served in my

capaci*_y a° Deputy Clerk ( Supervisor, Crim,inal

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Traffic Divisi(Dn) or the Berea Municipal Court

clerk of Court, it has never been the practice of

the Berea Municipal Court Clerk of Court to

charge any Defendant more than once per case with

the $15.00 fee mandated under O.R.C. 2949.091(A)

or the $9.00 fee mandated under O.R.C.

2743.70(A)."

Is that a true statement?

A. Yes.

Q. And is there any reason for that not to be a true

and accurate statemenL for the years that you've

served as supervisor of the traffic and criminal

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department in the Berea Municipal Court?

A. No.

MR. STRIGARI: That's it. I'm

done. Thank you.

THE WITNESS: Thank you.

MR. BASHEIN: That's it.

C^1^ P o-,.,A-COLLEEN P. CC;NE

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C E R T I F I C A T E

The State of.Ohio, ) SS:

County of Cuyahoga.)

I, Lynn D. Thompson, a Notary Public within

and for the State of Ohio, authorized to

administer oaths and to take and certify

depositions, do hereby certify that the

a,. "'iove-named witness was by me, before the giving

of their deposition, first duly sworn to testify

the truth, the whole truth, and nothing but the

truth; that the deposition as above-set forth was

reduced to W^iting by me by means of stenotypy,

and was later transcribed into typewriting under

my direction; that this is a true record of the

testimony given by the witness; that said

deposition was taken at the aforementioned time,

date and place, pursuant to notice or

stipulations of counsel; that I am not a relative

or employee or attorney of any of the parties, or

a relative or employee of such attorney or

financially interested in this action; that I am

not, nor is the court reporting firm with which I

am affiliated, under a contract as defined in

Civil Rule 28(D).

IN WITNESS WHEREOF, I have hereunto set my

hand and seal of office, at Cleveland, Ohio, this

day of , A.D. 20

Lynn D. Thompson, Notary Public, State of Onio

1750 Midland Building, Cleveland, Ohio 44115

My commission expires January 24, 2010

25

Michael Lingo, et al, v.State of Ohio

$10 15:4$15 7:10;14:2;1722 21:9,18:23:1$15.00 23:18$2 11:19;12:24$3 12:22;17:18$5 14:23.25$50 17:6.7,12$56 9:13;17:17$7 12:20;17:18$75 15:2$9 7:13;13:4;14.2;17:21;21:14,18;23:1$9.00 23:19$910 17:13

0

04TRC3862 21:705 21:24

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Colleen P. CoyneMav 4. 2006

cost 9:10;11:8,9;16:19costs 5:3;6:8,10,20;7:4.68:14,18;9:2,11;12:16,18;13:8,17;14:13,17;21:7 13;22:12;23:4counsel 13:2 5;15:20count 8:7,12;9:16;10:1;1 1:11,14,23;12:1;14:6;

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Mehler & Hagestrom Min-U-Script® (I) $10 - general's

Michael Lingo, et at. v.State of Ohio

given 15:21giving 5:15Giick 4:18;10:15;19:2;21:6,8,9,14,19Glick's 18:22Good 20:10Greg 20:24guess 12:7

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Mehler & Hagestrom Min-U-Script@ (2) given - title

Michael Lingo, et al. v.State of Ohio

today 5:16;6:18;20:21traffic 5:21;6:4;9:5;10:4;21:1:23:25Traffic 23:14transaction 7:23treasurer 21:10,15trick 5:4true 23:21,23try 10:12turn 16:18twice 17:18,18,18,19two 10:17;16:25;18:25;19:3,8Two 10:16two-page 17:3type 5:3;7:4typically 15:10

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Mehler & Hagestrom

LAWYER'S NOTES

PAGE I LINE

TO THE WITNESS: DO NOT WRITE IN TRANSCRIPT EXCEPT TO SIGN. Pleasenote any word changes/corrections on this sheet only. Thank you.

TO THE REPORTER: I have read the entire transcript of my deposition taken on the/-/ 7h day of tn a 0 , 20 C^, or the same has oeen read

to me. I request that the following changes entered upon the record for the reasonsindicated. I have signed my name to the signature page, and I authorize you to attach thefollowing changes to the original transcript:

PAGE LINE CORRECTION OR CHANGE AND REASON THEREFORE

^P l l/ ê h r C o r d l O;

^d' r c e.0 7 c ro ê

1 la Gn î1dc e ^' Y1U 1^1^^^20

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.5-2 3-C^-Today's date

,

Signature of Depon nt

08-0408 case no. 08-0408 original action in prohibition affidavit in support of complaint for writ...

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