IN the SUPREME COURT of OHIO Nancy Margaret Russo, Judge

IN THE SUPREME COURT OF OHIO

State of Ohio, ex rel. William D. Mason, Cuyahoga County Prosecuting Attorney The Justice Center, Courts Tower 1200 Ontario St., Ninth Floor Case No. Cleveland, Ohio 44113,

Relator,

vs.

Nancy Margaret Russo, Judge, Cuyahoga County Court of Common Pleas The Justice Center, Courts Tower 1200 Ontario St., Courtroom 18C Cleveland, Ohio 44113,

Respondent.

PETITION AND COMPLAINT FOR WRIT OF PROHIBITION AND APPLICATION FOR IMMEDIATE ALTERNATIVE WRIT

INTRODUCTION AND JURISDICTION i This is an originai action for a writ of prohi'pition, seeking to prevent the

Honorable Judge Nancy Margaret Russo from enforcing orders that she issued

on June 13, 2012, June 18, 2012, June 22, 2012, and June 25, 2012, which

purport to grant a Temporary Restraining Order ("TRO") against Relator

restraining him from criminal enforcement of Ohio's Gambling Laws against

internet sweepstakes operations in Cuyahoga County. Relator contends that

Respondent patently and unambiguously lacks jurisdiction and/or exceeds her

jurisdiction by: (1) conducting judicial proceedings and prematurely determining, in a civil action, whether factually disputed conduct violates Ohio

law, and (2) by granting a TRO and authorizing discovery in a civil case that

unconstitutionally interferes with Relator's prosecutorial discretion to bring

criminal charges. Respondent has abused her equitable power by interfering

with an ongoing criminal case and interfering with Relator's executive

discretion to pursue criminal charges. Relator therefore seeks an alternative

writ that immediately stays all proceedings before Respondent related to her

decision to grant a TRO in this matter.

2. This Honorable Court has jurisdiction of the action under Article IV, Section

2(B)(1), of the Ohio Constitution.

PARTIES

3. Relator Mason is the duly elected Prosecuting Attorney for Cuyahoga County,

Ohio. The Prosecuting Attorney is an official within the executive branch of

state government. State v. Hall, 2nd Dist. No. 99-CA-94, 2000 WL 125947;

Gosney v. Board of Elections, 7th Dist. No. 88-C-54, 1989 WL 30866; see also

State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-1790, 864 N.E.2d 630, at ¶¶

35, 41 (striking R.C. 2953.82(D) as unconstitutional because it delegated

judicial authority to the prosecuting attorney, a member of the executive

branch). Relator's duties include "inauirLv] into the commission of crimes

within the county" of Cuyahoga. R.C. 309.08.

2 4. Respondent Russo is a duly elected Judge of the Court of Common Pleas for

Cuyahoga County, Ohio, whose independent office falls within the judicial

branch of state government. Hall, supra.

FACTS

The Criminal Case

5. On May 30th, 2012, a Cuyahoga County Grand Jury indicted 10 individuals and

7 companies in a 70-count indictment for operating, or working in close

cooperation with, the owners of an intricate internet gambling system known

as "VS2." The VS2 software is controlled by individuals at the New Jersey

headquarters of VS2 Worldwide Communications, LLC. All of the parties were

indicted for Engaging in a Pattern of Corrupt Activity, Gambling, and Money

Laundering for their respective roles in providing, maintaining, and

perpetuating an internet gambling system that they have tried to conceal by

renaming/describing their activities as operating "internet sweepstakes."

6. Internet Sweepstakes cafes are retail establishments often located in shopping

centers or strip malls, which operate computerized gambling devices. For a

price (usually $20.00) a customer is provided with gambling "credits" and

permitted to sign onto a computer terminal which is programmed to simulate a

video slot machine. In order to create the illusion that such activity is not

gambling, retail vendors purport to sell customers "Internet time" or "long-

distance pre-paid phone cards," and the money used to purchase such items is

loaded into the video game as gambling credits or tokens. Depending upon the

3 customer's luck at playing the video slot machines, he can win more credits or

tokens which can be redeemed for cash or more gambling time.

7. The indictment, which is pending in Cuyahoga County Court of Common Pleas

Case No. CR 563092, was premised upon the following allegations:

The Ohio Investigative Unit of the Ohio Department of Public Safety,

working closely with the, United States Secret Service, identified the

principal operators and bank account holders of the VS2 gaming system

as Phillip Cornick, Edward Kaba, and Richard Upchurch. Over the

last 4 years these individuals have perpetuated the spread of their VS2

gaming system into Ohio with the assistance of Ohio-based mid-level

distributors and marketers of the system, George Georgekopoulos,

Pete Georgekopoulos, Christos Karasarides, and Christopher

Maggiore, who have persuaded many small business owners in

Cuyahoga County that VS2 internet cafe gaming system operates as

"sweepstakes" (which are not illegal and were only recently regulated in

Ohio), rather than gambling (which is expressly illegal).

In addition, the distributors and marketers of VS2 gaming system have

enlisted_the assistance of local opportunists who recognized the popularity

of the VS2 gaming system and sought out contacts with the company to

allow them to bring it into the local businesses they work with. Martin

and Neil Sarcyk, owners of Union Vending, which already had a

significant number of Cuyahoga County's bars and restaurants as existing

4 customers for their vending machines, jukeboxes, and arcade games,

acquired many VS2 gaming system terminals from VS2 Worldwide

Communications, LLC and VS2's partner company, P & E

Technologies, Inc. (which both happen to be located in the same little

building in New Jersey and run by the same two individuals, Phillip

Cornick and Edward Kaba). The Sarcyks, through their business,

Union Vending, convinced businesses in Parma Heights, such as "Good

Time Charlies II" and "Mr. B'S" to add the VS2 gaming system terminals

to their spaces in their bars and restaurants. c. VS2's expansion practices show that it is determined to control the

internet cafe business wherever it goes. When the owner of "Good Times

Charlies II" rejected Christos Karasarides suggestions that she get rid

of her restaurant/bar altogether and dramatically expand her number of

VS2 gaming terminals, another local opportunist, James Watson, who

knew the mid-level distributors and marketers, opened the "Sweepnet"

internet cafe just a few business storefronts away. d. The Money Trail:

i. With records acquired by the Cuyahoga County Prosecutor's Office, the

Ohio Investigative Unit and the United States Secret Service identified

numerous company and individual bank accounts being used to

"launder" the vast amounts of cash being generated by the VS2

network. The revenue is funneled to New Jersey to VS2 Worldwide Communications, LLC in the form of checks and money orders from

the individual cafe owners, such as James Watson, and vendors such

as Union Vending, which only collects cash from its local

collaborators, but only sends checks.

ii. The money is then distributed from the VS2 Worldwide

Communications LLC's company account to various individual

accounts owned by Phillip Cornick, Edward Kaba, Richard

Upchurch, as well as to Elite Entertainment DBA VS2 Marketing

Group, an account controlled by Christos Karasarides, Jr., George

Georgekopoulos and Pete Georgekopoulos, located in Ohio. iii. From Elite's account, the marketers/distibutors then pay themselves

from their individuals accounts, except, Christos Karasarides, who

has his share from Elite's account sent into two other accounts,

CKare Corp and CMKare LLC. The first is controlled exclusively by

Christos Karasarides, Jr. and the second is controlled by

Karasarides and Christopher Maggiore, who also has a

partnership with Karasarides that owns and operates several

internet cafes in Summit and Stark Counties, VS2 Cafe LLC. iv. The end result is a complicated and elaborate, layered, web of related

companies dispersing and distributing money to each other. Money

that started out as cash proceeds travels into companies and then

becomes what appears to be salaries or wages, even though these

6 companies really only exist to process or legitimize the vast sums of

money flowing to these individuals.

The Letter

8. The predominant modus operandi of retail internet sweepstakes cafes is to

claim that they operate legitimate, non-gambling businesses, and that the

sweepstakes - they operate are merely promotional events to increase

participation in their legitimate businesses. Such operators claim to operate

businesses in competition with other legitimate retailers such as Kinko's (as to

internet access) or Sprint or Verizon (as to long distance phone cards).

^. On May 30, 2012, the same day that the aforementioned criminal indictments

were returned, Relator sent a letter to numerous retail business

establishments in Cuyahoga County (hereinafter "Internet Sweepstakes

Cafes") warning them that they could be subject to criminal prosecution if they

did not cease illegal gambling activities. The letter read as follows:

The Cuyahoga County Prosecutor's Office has identified your establishment as havina an Internet Sweenstakac PaminQ avetAm operating on its premises. Please be advised that "Internet Sweepstakes Cafes" are gambling establishments. Ohio Revised Code Section 2915.02(A)(2) prohibits conducting "sweepstakes" games just as it does any other form of poker or slot machines not specifically exempted in the Revised Code.

Gambling ic illegal in ^,lhin and the O::iC CoTistitution perYTiits only four locations in the State where gambling is permissible.

This Office cannot permit gambling and gaming under the guise of Internet Sweepstakes Cafes. The Cuyahoga County Prosecutor's Office does not intend to bring any action against you or your establishment at this time. I direct that you cease any Internet Sweepstakes Cafe operations that are currently on-going and

7 permanently close this aspect of your business. Any individual who continues to operate an Internet Sweepstakes Cafe will have their facts presented to a Grand Jury for criminal prosecution and forfeiture.

(A copy of the May 30, 2012, letter sent to the owner(s) of J&C Marketing,

LLC, is attached hereto as State's Exhibit 1). Relator's May 30, 2012, letter

did not operate to close any business and did not confiscate any property.

Instead, Relator's letter warned individuals and entities that Relator believed

that part of their conduct associated with operating an unlawful gambling

business constituted a violation of Ohio criminal law and Relator could seek

indictment if the business owners did not cease their conduct.

10. Although both Respondent and the recipients of the letters have maintained

that the letter "involuntarily closed" the internet cafes, the letter did not close

anything. First, the letter only addressed Internet Sweepstakes and directed

the operators to close "that aspect of their business." Id. Moreover, the letter

simply warned of future prosecution, as Relator's assistant argued at a June 5,

2012 hearing hPfnre R.a.cnnnr7Pnt•

at torney.

* * *

A cease and desist letter is - is not a criminal prosecution. All it is is a letter by the prosecutor telling someone I may prosecute you in the future if you keep doing this. This is generally considered to be an act of cooperation and mercy that the prosecutor shows to people as opposed to springing a prosecution on them and then they cry and say, Why didn't you tell me I was doing something wrong; I

8 } don't want to violate the law; I'll comply with the law.

(June 5, 2012 Tr. pp. 18; 22-23, attached hereto as State's Exhibit 2).

The TRO

11. On June 4, 2012, J&C Marketing, LLC, filed in the Cuyahoga County Court of

Common Pleas, a Complaint for Declaratory Judgment seeking preliminary

and permanent injunctive relief, together with a Motion for Temporary

Restraining Order against Relator in his capacity as Cuyahoga County

Prosecutor, seeking to:

a. Enjoi[n] [Relator's] May 30, 2012, cease and desist letter to Plaintiffs internet sweepstakes cafes located in Brook Park and Parma Heights, Ohio; and

b. Enjoi[n] Relator from enforcement of Ohio Revised Code §2915 et seq. against Plaintiffs internet sweepstakes operations in Brook Park and Parma Heights, Ohio.

(A copy of the J&C Marketing, LLC's June 4, 2012, Motion for Temporary

Restraining Order is attached hereto as State's Exhibit 3). The case was

docketed before Respondent and assigned case number CV 12-784234.

12. At an initial hearing on June 5, 2012, Relator's assistant argued that

Respondent had no equitable jurisdiction to restrain a criminal prosecution:

Not every criminal defendant has the ability to come into court and say, I fear I'm going to be indicted for the alleged criminal conduct, t herefore I want a common pleas judge to issue a TRO and an injunction restraining the prosecutor for prosecuting the case.

* * * Generally, courts of equity will not intervene to enjoin the enforcement of the law by prosecuting officials and have no jurisdiction to enjoin pending or threaten[ed] criminal prosecutions.

(June 5, 2012 Tr. 16, attached hereto as State's Exhibit 2).

9 13. During the June 5, 2012 hearing, Respondent expressed her concern that the

enforcement actions of the Cuyahoga County Prosecutor might be different

than the actions of the other 87 county prosecutors in different counties,

thereby placing Cuyahoga County internet cafes at a competitive disadvantage.

She explained: "If truly the State believes that this is illegal, this action by one

prosecutor has said in one count it can't be - it can't go on, but yet if they move

across the line to Lake or Summit suddenly they have a business." (June 5,

2012 Tr. p. 21, attached hereto as State's Exhibit 2). "We're talking about

cease and desist letters. We're talking about a state action that affects

commerce in one of 88 counties." Id.

14. During a hearing that the Court held on June 13, 2012, Relator's assistant

renewed the State's objection to Respondent using the TRO process to pre-

adjudicate the legality of allegedly criminal conduct:

MR. LAMBERT: The first issue I'd like to address is the propriety of doing what the plaintiff asks in a TRO context. This is not a preliminary injunction hearing. It is a temporary restraininu nr.lAr !:ear A ir.g• A temporary restraining order, the function of a temporary restraining order is to preserve the status quo ante. The status quo when the plaintiffs came into this Court was that they had shut down their business. If they want to have you order that those business may reopen, that would be done by means of a mandatory injunction against Prosecutor Mason. It would not be a proper subject of a temporary restraining order because :+ preserve the status quo ante. In fact, it overturns the status quo ante.

Now, it doesn't matter if they did that because they felt a threat that they could be prosecuted for a crime. It's a fact that that's what was the status quo. So to do this in a TRO proceeding where there is no evidence, and all we're listening to are the legal

10 pleadings of the parties, the self-serving affidavits and the arguments of counsel I believe is improper under the civil rules.

THE COURT: [The Prosecutor] made a decision, for whatever his decision is, in his judgment, which he is obligated to do and I trust he does well. He made a decision to charge some and not charge others. I don't read anything nefarious into that. What I read into that is he made a cogent review and he made decisions to treat different people different ways. The way he chose to deal with these particular plaintiffs does not preclude them from seeking a civil remedy. That's where we disagree. We're going to have to agree to disagree.

MR. LAMBERT: I'm not saying we agree to disagree, I'm urging on the Court that it is, it would be ill advised under Ohio law to grant a remedy when the facts of each case would be unique; Those facts are gonna'[sic] make the difference between whether or not this is gambling or is truly an internet sweepstakes.

(June 13, 2012 Tr. pp. 21-22, attached hereto as State's Exhibit 4).

15. During the June 13, 2012 hearing, Respondent made a point to distinguish

between the plaintiffs affected by her TRO case and the criminal defendants,

explaining that she did not believe that the plaintiffs were "asking [her] to

enjoin criminal conduct. This is a civil proceeding with a specific civil remedy

being sought that has to do with the definition of gambling. Id. Respondent

also took care to distinguish between the class of plaintiffs in her TRO case

that were distiriguished frorn the defendants in the criminal case by means of

the software employed for the alleged gambling:

11 And I made it clear at the beginning that I will not allow anybody to participate in this case that is indeed using the software program that is the subject of the criminal case.

Id. at 21-22. Respondent reiterated her belief that her conduct in granting the

TRO would not impact the prosecutor's discretion:

!i THE COURT: I don't know if that's what their goal is. Their goal is to reopen their business. Your office chose, again for whatever reasons your office has, to not charge certain people and to charge others. And I expect that you will vigorously prosecute those and they will be vigorously defended, and all the elements of that crime, if they are proven, will result in guilty; and if not proven, result in not guilty verdicts. But none of those people are involved in this case. So no, I don't agree with you that they are asking me to enjoin criminal conduct. This is a civil proceeding with a specific civil remedy being sought that has to do with the definition of gambling.

And quite frankly, I believe that there is the, possibility that even in the event this Court finds these particular plaintiffs are sweepstakes cafes for purpose of compliance with the statute, that that does nor preclude your office from prosecuting others, or presenting evidence perhaps at a later date that would contradict the evidence presented here that said that they were gambling.

MR. LAMBERT: Let me respectfully suggest, your Honor, the point

t}ia4.--».. J..-+...+..vnn aro malrino.+.....^^a abic -..nno v-+vnf va 4ho .iv avu-.vvroaconc -av--avrl-innlofoll }...r.iy (vaaiv)l,i^.•...,+^ a.vui^o why a Court in your position should not issue an injunction because it won't do anyone anyone[sic] any good if it's a completely fact- intensive issue is; are they truly paying a price to get internet phone cards, time on the Internet, or are they truly paying a price to gamble

THE COURT: if tfiat were true, Mr. Lambert, if that were the only distinction, then everybody would have been charged. And everybody wasn't charged. Some were given cease and desist letters. So there was some culling process that went on at the prosecutor's office. Which, again, I don't want to know and I don't care to know. But we all would agree that there is a difference in software companies, that is clear.

12 So I do think that it's appropriate for me to hear the TRO. And I don't see it as interference in any way with the the criminal case; those are separate issues, they are separate software matters.

I told you at the beginning of this hearing I will not permit any operator who is using that particular system, if it's a subject of criminal cases, to enter my case. That doesn't mean they can't file somewhere else and another judge might not let them do it. But it's not going to happen here.

Id. at 35-37.

16. Following the hearing, Respondent then filed a journal entry on June 13, 2012,

which stated:

The court grants the TRO and makes the following findings: that the plaintiffs herein (including intervening plaintiffs) are not utilizing the VS2 software which is the subject of the pending criminal case; that none of the plaintiffs herein are subjects of any criminal proceeding; that the businesses/plaintiffs are sweepstakes establishments operating pursuant to Ohio law; that the business activity is not gambling and is not prohibited by Ohio law; that the individual localities have made a determination that the businesses are lawful enterprises and issued permits and/or licenses to these plaintiffs; that the plaintiffs were operating prior to the enactment of HB386 and are therefore grandfathered in pursuant to that 1r^oialatinn nrnvirlafl that thov rnninlv with thP raoiatrakinn requirements; that the plaintiffs were involuntarily closed by law enforcement and have successfully proven they are entitled to the TRO, being a court order that permits them to re-open immediately and to begin compliance with the state's regulations as contained in HB386;

The court also ;.nds that in its review of the pleadirigs and tl-ie arguments, that the plaintiffs have satisfied all necessary elements for the granting of this TRO and specifically finds that: the plaintiffs have demonstrated a likelihood of success on the merits; that the TRO is necessary to prevent irreparable harm to the plaintiffs and there is no other remedy at law; that the closing of the businesses has resulted in unemployment of individuals and lost business income, and the cease and desist letters have placed these plaintiffs at a competitive disadvantage with similarly

13 situated businesses throughout Ohio and outside Cuyahoga County; that the balance of harm requires the issuance of the TRO and to return the parties to their respective positions (status quo) prior to the issuance of the said cease and desist letters; that the public interest is best served by the granting of the TRO as the businesses have received licenses/permits from local governments, are not operating in violation of Ohio law (based upon the pleadings and argument) and that the legislature has specifically permitted the business of sweepstakes enterprises.

That no bond is required of any plaintiff.

Further the parties have agreed that the term of this TRO is effective immediately and through 7/23/12; hearing set 7/23/12 at 10am. The extension of the TRO may occur only by agreement of the parties. (The court notes that the agreement of the defense to the extension of the TRO does not constitute an agreement with the issuance of the TRO).

(A copy of Respondent's June 13, 2012, Journal Entry is attached hereto as

State's Exhibit 5, emphasis added).

17. In short order, following the hearing on June 13, 2012, numerous owners of

Internet Sweepstakes Cafes have sought and been granted plaintiff-intervenor

status by Respondent. Thereafter, Respondent has issued substantially

similar journal entries granting the TRO as to the intervenors. (A copy of

Respondent's June 18, 2012, Journal Entry, June 22, 2012 Journal Entry, and

a copy of Respondent's June 25, 2012 Journal Entry is attached hereto as

State's Exhibxt 6, 7, and 8, respectively). Respondent also held hearings o..

June 18, 2012, June 22, 2012, and June 25, 2012, in which she entertained

arguments on allowing the aforementioned plaintiff-intervenors to join her

case. (A copy of the June 18, 2012, hearing transcript, as well as the June 22,

14 2012, and June 25, 2012 hearing transcript is attached hereto as State's

Exhibit 9 and 10, respectively). L 18. During the June 22, 2012 hearing, counsel for Plaintiff-Intervenor ISHU, Inc.,

Robert P. Desanto, explicitly argued for a TRO on the grounds of what he

perceived to be inconsistent prosecutorial enforcement of Ohio's gambling laws:

It does not meet the definition of gambling under the Revised Code in the State of Ohio, does not meet the definition of a gambling house. It is likely, we think, to succeed based on Ohio case law in State versus Dabish, and the fact that there is no risk, doesn't meet the definition of gambling, does not meet the Federal definition of gambling. So we believe that we are likely to succeed.

***

We think that it is important in the public interest because the fact that you can't have a law sporadically enforced in the State of Ohio where in most of the counties it's not enforced as gambling against the sweepstakes owners, but in Cuyahoga County apparently it is and that needs to be resolved.

We don't think in the early stages of these proceedings, we don't think that our entrance into this would in any prejudice anyone. We are similarly situated as all the other people, other than Derhaps the telenhone internet or the telephone businesses. We just do internet. We ask that if Mr. Mason is not restrained in his efforts to shut us down, we would face criminal prosecution and damages without reason.

(June 22 & 25, 2012 Tr. pp. 39-40, attached hereto as State's Exhibit 10,

emphasis added). In respanse, Relator's assi stant argi`ed that pr^vsecutorial

discretion should not be a basis to grant a TRO:

15 therefore I should be able to engage in prostitution in this county. Because otherwise it's unequal enforcement throughout the State. Unequal enforcement is not an excuse to violate the law.

Id.

19. During the June 25, 2012 hearing, Respondent abandoned any pretense of

separation between the subject matter of the criminal case and her TRO when

she chose to allow plaintiffs using the VS2 software, which is the subject of the

pending criminal litigation, to intervene in the TRO litigation. Even further

undermining the illusion of any separation, the same lawyer representing the

criminal defendants-indeed, VS2 Software itself-showed up at Respondent's

June 25, 2012 TRO hearing and was allowed by Respondent to argue for

allowing VS2 plaintiffs to join the TRO. Id., at 88-100. At that point, Relator's

assistant vigorously objected:

MR. LAMBERT: I think the objection is particularly acute when the company that owns VS2 software markets VS2 software and all their principal related entities and now the chain of marketing are under indictment and are in fact engaged in pre-trial nroceedines incident to a criminal nrnsecution_

I would just say that our objection to any person using a civil lawsuit as a means of heading off a criminal prosecution and/or obtaining discovery regarding that criminal prosecution is particularly acute already and that's what the VS2 software participants are, your Honor.

THE COURT: So I have looked at the indictments and I don't see anything in the indictments as to the software operation. I see in the indictments VS2 software was a defendant, but I don't see a particular charge relating to the actual software itself.

Id. at 91. The attorney, Mark E. Schamel, identified himself as counsel after

having been granted pro hac vice status and appeared in the criminal litigation

16 on behalf of his clients, criminal defendants Phillip R. Cornick and Richard

Upchurch, VS2 World Wide Communications, LLC and P&E Technologies, Inc.

(See Motion for Admission to Appear Pro Hac Vice, and Motion for

Reassignment filed in Cuy. Co. Court of Common Pleas Case No. CR 563092,

attached hereto as State's Exhibits 11 and 12, respectively).

20. During the June 25, 2012 hearing, the Court also announced that she intended

to allow the parties to depose Relator:

But I will say this: I certainly recognize that if I grant the TRO to VS2 software people, it's going to subject everybody involved to discovery and Mr. Lambert believes that is a problem.

I happen personally to believe that's a double-edged sword for both of you. If I grant the TRO and place you on a discovery schedule, it means that Mr. Lambert may be concerned about the fact that you might get discovery from them that might impinge on the criminal case, but equally he can get discovery from you, unless you exercise the Fifth Amendment right.

So what I would say to you is that if I grant the TRO and put you on a discovery schedule, if there is a reason that somebody has to invoke the Fifth Amendment right, although I don't see VS2 as not nart of mv case. but if that comes un he can alwavs aGk for a atav a,,;--- to that portion of the civil case and, of course, I could grant that.

Additionally, I would say the same thing I have said before, that if discovery proceeds on the non-VS2 software as it is proceeding on the VS2 software, that this discovery is going to be focused and limited. We are not going on any frolics.

Mr. Mason is not going to get deposed 20 times. Your clients aren't getting deposed 20 times. People are going to have to cooperate. These are going to be focused. I offered to have them done in the juryroom, if you would like. And these questions are going to have to be very specific to my case and not fishing expeditions.

I have heard arguments about the TRO. I have asked some questions that I felt were important, given the fact that the VS2

17 software is not somehow distinctly different from the other software. I don't see any reason why the TRO shouldn't also apply to the VS2 software defendants.

Id. at 95-7.

21. Between June 26, 2012, Relator has received numerous discovery requests

from the plaintiffs-intervenors in the TRO case, including Interrogatories,

Requests for Production, Requests for Admissions, and Notices of Depositions

seeking to depose Relator.

22. On June 28, 2012, Relator filed a Motion for Protective Order seeking to

prevent discovery, requesting a protective order on the following grounds:

a. Requiring [Relator] or his employees to respond to civil discovery requests concerning a matter that is the subject of pending or potential criminal investigation impermissibly intrudes upon the activities of the Executive Branch of government and upon the prosecutor's ability to prepare criminal prosecutions free from interference by the judiciary.

b. Requiring [Relator] or his employees to respond to discovery requests concerning a pending or potential criminal investigations requires the disclosure of information and communications nrotected as Law F.nfnrnPmant. Tnvnat.igat.nrv Materials. a

c. Requiring [Relator] or his employees to respond to discovery requests concerning a pending or potential criminal investigations requires the disclosure of information and communications protected by the attorney-client and/or the work-product priviiege.

(A copy of the Motion for Protective Order is attached hereto as State's Exhibit

12).

23. On July 1, 2012, Respondent denied Relator's Motion for Protective Order.

Respondent did order that the plaintiffs-intervenors be precluded

18 [fJrom utilizing discovery to elicit from the defendant his legal opinion about what constitutes gambling, what constitutes a violation of Ohio law, his interpretation of any portion of the ORC as these are matters before the court and not proper avenues of inquiry in discovery; additionally, the plaintiffs are not permit to elicit from this defendant his personal opinions or understandings of how the sweepstakes business works, as that is the subject of the argument and expert opinion which will be addressed by the court at a hearing.

(A copy of Respondent's July 1, 2012 Journal Entry is attached hereto as

State's Exhibit 13).

24. Although Respondent's July 1, 2012 Order did grant some limited protection,

Relator's numerous discovery responses are due July 9, 2012 and Relator

anticipates that the plaintiffs-intervenors will abuse the rules of Civil

Procedure to infringe upon Relator's independent prosecutorial discretion, and

will force Relator to disclose attorney work product and confidences, as well as

confidential grand jury and confidential law enforcement material.

25. To illustrate the particularly onerous and abusive nature of the plaintiffs'-

i„+.,____..P_.r<,a.,nora' ^_.._...__^ rl;crnvPrv rlaman^lc _-_------, R.alat.nr hac at.t.achad ------Intarroeatories. o------,

Requests for Production, and Requests for Admissions propounded by Cyber

Time Internet Cafe, Maple LLC, received by Respondent on July 1, 2012.

(Copies of Cyber Time Internet Cafe, Maple LLC's Interrogatories, Requests

for Production, and Requests for Admissions are attached hereto as State's

Exhibits 14, 15, and 16, respectively, as well as a copy of the ISHU, Inc. d/b/a

Internet Plaintiff, Ishu, Inc. Dba Internet Cafe's Combined First Request For

Production Of Documents And Interrogatories, attached hereto as State's

19 Exhibit 17). For example, ISHU Inc's demand requires Relator to "provide the

names, addresses and telephone numbers of any and all agents and/or

employees of the Cuyahoga County Prosecutor's Office and/or law enforcement

agency with direct or indirect knowledge of the specific operations * * * in reference to the May 30, 2012 letter." (ISHU, Inc. d/b/a Internet Cafe's

Combined First Request For Production Of Documents And Interrogatories, at

4, attached hereto as State's Exhibit 17). In particular, ISHU, Inc.'s demand for Interrogatories vividly illustrate the inappropriate and abusive manner in which the Rules of Civil Procedure can be used to interfere with an ongoing criminal investigation and to interfere with a prosecutor's exercise of independent discretion:

INTERROGATORY NO. 2: Please provide the names, addresses and telephone numbers of any and all "experts" the Cuyahoga County Prosecutor's Office and/or law enforcement agency have consulted and/or retained that have direct or indirect knowledge of the specific operations of Plaintiff, ISHU Inc. DBA Internet Cafe and/or its sweepstakes devices in reference to the May 30, 2012 lPt.t.ar frnm_ t.ha Cuva_hnua Cnuntv Prncacut.nr rlalivararl t.n aforementioned Plaintiff and its agents and employees.

INTERROGATORY NO. 3: Please identify the date when the Cuyahoga County Prosecutor specificallp determined that the specific operations of Plaintiff, ISHU Inc. DBA Internet Cafe were "gambling establishments" in reference to the May 30, 2012 letter from tiie Cuyaiioga County Prosei,utor deiivereu to aforementioned Plaintiff and its agents and employees[.]

INTERROGATORY NO. 4: Please identify the specific supporting documentation and/or evidence of any type or kind related to and in support of the answer to Interrogatory 3 and in specifically determining that the operations of Plaintiff, ISHU Inc. DBA Internet Cafe were "gambling establishments" in reference to the

20 May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees

INTERROGATORY NO. 5: Please identify and specifically list any and all documentation related to the software and design for each and every sweepstakes device individually used specifically by the aforementioned Plaintiff that the Defendant used in its determination that Plaintiffs operations were "gambling establishments" in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

INTERROGATORY NO. 6: Please identify and list specifically in what manner each sweepstakes devices used specifically in aforementioned Plaintiffs establishment caused the Cuyahoga County Prosecutor's Office to determine Plaintiffs establishment to be "gambling establishments" in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

INTERROGATORY NO. 7: Please identify and list each sweepstakes devices used in aforementioned Plaintiffs establishment that was determined to be a gambling device and identify specifically how each machine was in violation of Ohio Revised Code Section 2915.02(A(2) in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

TNTFRR.(NTAT(1RV Nn R• PlPneP irlPntifv nnrl liat nnv nthPr ------_ _------_. _. _ __---_ ___-----^ ------^ ------pattern of conduct specifically to the aforementioned Plaintiffs establishment, not previously answered in Interrogatory No. 7 and identify specifically how and in what manner said conduct was determined to be in violation of Ohio Revised Code Section 2915.02(A)(2) in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents ar.u employees.

Id.

26. To date, Respondent has allowed approximately 23 plaintiffs-intervenors to

join the TRO litigation. They are: J&C Marketing, LLC; Izdihar "Esther"

Najjar d/b/a/ Cyber Oasis; Cyber World Entertainment Corporation; A J & N,

21 Inc.; Internet Escape, LLC Gamers Club of North Olmsted, Inc.; Garth and

Lindsey, LLC; Royal Palms Sweeps, LLC; BG Broadway 320, Inc.; Ohio

Internet Cafe, LLC; Le Royale, LLC; JPAS, Inc.; A1123, Inc.; ISHU, INC.; CTD

Entertainment, LLC d/b/a Hot Slots Internet Cafe; LV & IBNEE, LLC d/b/a

Hot Spot; AMA Ventures, Inc. d/b/a/ Internet Galaxy; Nova's Internet

Sweepstakes Cafe; JimKat, LLC, d/b/a Cyberspace Internet Cafe; Tritsarolis

Investments, Inc., d/b/a Internet Island; Cyber Space Westlake, LLC; Land of

the Loot and Piggy Bank; SOR, LLC dlb/a Lucky Palms and Feelin Lucky,

LLC; Las Palmas III, LLC; Cyber Time Cafe Maple Hts., LLC; Page-Jaq, LLC;

and New Heights Business Center, LLC.

27. At no point in the proceedings has Respondent heard any actual testimony or

considered any properly admitted evidence. Nevertheless, Respondent has

made the explicit factual determination that the plaintiffs "are sweepstakes

establishments operating pursuant to Ohio law; [and] that the business

arfivitv ic nnt uamhlins anfl ia nnt nrnhihitPrrl hv (lhin law" haaerl enlPlv nnnn

the informal arguments of lawyers at the TRO hearings.

PROHIBITION LIES TO PREVENT RESPONDENT RUSSO FROM ENFORCING HER JUNE 13, 2012, JUNE 18, 2012, JUNE 22, 2012, AND JUNE 25, 2012 JUDGMENTS GRANTING TEMPORARY RESTRAINING ORDERS THAT PRt-ADJUDICATE THE LEGALITY OF A PLAINTIFF'S ALLEGED CRIMINAL CONDUCT AND INTERFERE WITH RESPONDENT'S PROSECUTORIAL DISCRETION TO SEEK CRIMINAL CHARGES AGAINST INDIVIDUALS FOR VIOLATIONS OF OHIO LAW.

28. For a writ of prohibition to be granted, the relator must prove that (1) the

lower court is about to exercise judicial power, (2) the exercise of power is

22 unauthorized by law, and (3) the relator possesses no other adequate remedy of

law. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001-Ohio-15 (citation

omitted). A writ of prohibition will issue if it clearly appears that the court or

tribunal whose action is sought to be prohibited has no jurisdiction of the cause

which it is attempting to adjudicate or is about to exceed its jurisdiction. See

State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), syllabus

at paragraph three; Shafer v. Common Pleas Court of Franklin Cty., 137 Ohio

St. 429, 30 N.E.2d 811 (1940), syllabus at paragraph one.

29. Respondent Russo's TRO decisions, which pre-adjudicate the legality of alleged

criminal conduct and interfere with the prosecutor's executive discretion,

violate Ohio's doctrine of separation of powers. "The principle of separation of

powers is embedded in the constitutional framework of our state government.

The Ohio Constitution applies the principle in defining the nature and scope of

powers designated to the three branches of the government." State v.

Nnrhhr.v..clar 7Fi nhin .5`t._Rd 4.ri.ri. 463. 668 N.E.2d 457 (1996). citinff State u.

Warner, 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31 (1990); and State v.

Harmon 31 Ohio St. 250, 258 (1877). "It is inherent in our theory of

government `that each of the three grand divisions of the government, must be

protected from the encroachments of the others, so far that its integrity and

independence may be preserved ***." Hochhausler, supra, quoting S. Euclid

v. Jemison, 28 Ohio St.3d 157, 159, 503 N.E.2d 136 (1986), and Fairview v.

Giffee, 73 Ohio St. 183, 187, 76 N.E. 865 (1905). "The separation-of-powers

23 h doctrine requires that each branch of government be permitted to exercise its

constitutional duties without interference from the other two branches of

government." State ex rel. Dann u. Taft, 109 Ohio St.3d 364, 372, 2006-Ohio-

1825, 858 N.E.2d 472.

30. Further, Respondent Russo has exceeded and is about to further exceed her

jurisdiction by enforcing her June 13, 2012, June 18, 2012, June 22, 2012 and

June 25, 2012 orders that grant a TRO enjoining Relator from (1) enforcing the

terms of his May 30, 2012, letter namely to seek criminal charges against

individuals for conduct that constitutes a violation of Ohio Law, and (2)

enforcing R.C. §2915 et seq. against plaintiffs and/or others.

31. Respondent Russo has exceeded and is about to further exceed her jurisdiction

by allowing plaintiffs to conduct discovery, including enforcing the demand for

production of documents, interrogatories, and depositions. Since the subject

matter of J&C Marketing, LLC's complaint and Motion for Temporary

iw^^.u...... bP.octr^;n;no (lrrlar.^...... _ hv flPf;n;t;nn ...^ .._..______cnnt.PGts Relator's abilitv " to enforce criminal

violations of Ohio's gambling laws, the only possible relevant scope of discovery

is the evidence, rationale, and thought process behind Relator's discretionary

judgment that Internet Sweepstakes Cafes violate Ohio law and could be

subject to criminal prosecution. The scope of such discovery is beyond

Respondent's jurisdiction and interferes with Relator's prosecutorial discretion.

32. Respondent Russo has exceeded and is about to further exceed her jurisdiction

by making premature determinations that include but are not limited to

24 declarations that "the businesses/plaintiffs are sweepstakes establishments

operating pursuant to Ohio law" and that "the business activity is not

gambling and is not prohibited by Ohio law." See Respondent's June 13, 2012,

June 18, 2012, June 22, 2012, and June 25 2012 Journal Entries, supra.

33. Respondent patently and unambiguously lacks jurisdiction to interfere with

Relator's prosecutorial discretion to seek criminal charges against individuals

for violations of Ohio Law. In State ex rel. Master v. Cleveland, 75 Ohio St.3d

23, 1996-Ohio-228, 661 N.E.2d 180, this Honorable Court explained that "[t]he

decision whether to prosecute is discretionary, and not generally subject to

judicial review." Id. at 27, citing Ohio Assn. of Pub. School Emp., Chapter 643,

AFSCME, AFL-CIO v. Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159,

160, 572 N.E.2d 80 (1991). In Pengov v. 4Vhite, 146 Ohio App.3d 402, 766

N.E.2d 228 (2001), the Ninth District Court of Appeals explained that the

decision to prosecute rests entirely within the prosecutor's discretion:

The d„t.y nf t.he nroser_.ut.ing attorney is to exercise his discretion in determining, on a case-by-case basis, whether to prosecute particular individuals for alleged criminal offenses. "A prosecuting attorney will not be compelled to prosecute a complaint except when the failure to prosecute constitutes an abuse of discretion. Therefore, the decision whether to prosecute is discretionary, and not generally subject to judicial review." (Citations omitted.) State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 27, 661 N.E.2d 180. With respect to federal prosecutors, the United States Supreme Court has stated:

"In the ordinary case, `so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute * * * generally rests entirely in his discretion."' (Alteration added.) United States v. Armstrong (1996), 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d

25 687, quoting Bordenkircher v. Hayes (1978), 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604.

Once a prosecutor has, in the exercise of his discretion, determined that he will or will not prosecute a particular case, he has no continuing "duty" either to prosecute or to revisit his determination. Of course, the prosecutor may, in the exercise of his discretion, revisit his determination at any time until the statute of limitations expires and reverse or modify his decision. He has no duty to do so, however, either during his term in office in which the potentially criminal conduct occurred, or in any subsequent term in office. This is because "[t]he decision to prosecute * * * is discretionary," and therefore there is no "clear legal duty on the part of the county prosecutor to [prosecute]." Pierce v. Cuyahoga Cty. Court of Common Pleas (Apr. 16, 1992), Cuyahoga App. No. 62734, unreported, 1992 WL 80041 (affirming the dismissal of a petition for a writ of mandamus compelling a prosecutor to prosecute an alleged crime).

Id. at 406-7 (emphasis added).

34. The plaintiffs' complaints purport to seek relief under Ohio's declaratory

judgment statute, R.C. 2721.03, however, their complaints do not truly seek

any declaration as to the construction or validity of any law. Rather, they seek

a determination from Respondent as to whether their conduct violates the law.

That is exactly what Respondent has given them.

35. In Mid-American Fire and Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-

1248, 863 N.E.2d 142, this Honorable Court explained:

{ jj °o} A deeiaratory jiidgment actiOn provides a uieans uy wiiiCh parties can eliminate uncertainty regarding their legal rights and obligations. Travelers Indemn. Co. v. Cochrane (1951), 155 Ohio St. 305, 312, 44 0.0 302, 98 N.E.2d 840. An insurer may institute a declaratory judgment action to determine "its rights and obligations under a contract of insurance." Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, 30 OBR 424, 507 N.E.2d 1118, paragraph one of the syllabus. The declaratory judgment action may be brought even before any contract breach. R.C. 2721.04. The purpose

26 of a declaratory judgment action is to dispose of "uncertain or disputed obligations quickly and conclusively," and to achieve that end, the declaratory judgment statutes are to be construed "liberally." Ohio Farmers Indemn. Co. v. Chames (1959), 170 Ohio St. 209, 213, 10 0.0.2d 164, 163 N.E.2d 367.

{¶ 9} Although broad in scope, the declaratory judgment statutes are not without limitation. Most significantly, in keeping with the long-standing tradition that a court does not render advisory opinions, they allow the filing of a declaratory judgment only to decide "an actual controversy, the resolution of which will confer certain rights or status upon the litigants." Corron v. Corron (1988), 40 Ohio St.3d 75, 79, 531 N.E.2d 708. Not every conceivable controversy is an actual one. As the First District aptly noted, in order for a justiciable question to exist, "`[t]he danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events * * * and the threat to his position must be actual and genuine and not merely possible or remote.' " League for Preservation of Civil Rights v. Cincinnati (1940), 64 Ohio App. 195, 197, 17 O.O. 424, 28 N.E.2d 660, quoting Borchard, Declaratory Judgments (1934) 40.

Mid-American, at 8-9.

36. An action in which a party seeks to pre-adjudicate whether conduct is criminal

is particularly illegitimate for declaratory relief. For instance, in Quality Care

Trnn_ennrt^ r^ OWF.Q 2nrl Tli.ct fSnsP Nnc 2009-(',A-112• 2009-C,A-121 2010-

Ohio-4763, a company providing medical transport services requested a

declaration that its contracts with two hospitals were valid and did not violate

Medicaid law. The Quality Care trial court refused to declare whether the

plaintiff violated Ohio law by charging ODJFS more than the usual and

customary fee it charged its other customers, and the Court of Appeals

affirmed, explaining:

More importantly, OCT did not seek clarification on the construction or validity of the [administrative] regulation; rather, it

27 sought a ruling on whether it had violated the regulation. We question whether a declaratory judgment can establish whether specific actions are criminal in nature. See, e.g., State ex rel Becker v. Schwart, Licking App. No. 06-CA-4, 2006-Ohio-6389, ¶ 12 ("Assuming, arguendo, appellant seeks to pre-adjudicate a particular element of a potential criminal charge via a declaratory judgment *** we would be unwilling to approve such a maneuver ***.") Although it was the State that sought such a ruling in Becker, the same rationale would prevent a defendant from foreclosing a grand jury's consideration and a trier of fact's determination of a criminal charge. I Id. at 24.

37. The rule against a Court using its equitable power to interfere with criminal

prosecutions has long been established:

"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 Amusement Co. v. Attenweiler (1940), 137 Ohio St. 460, 465, citing 1 High on Injunctions, 4th ed. 85, section 68; Olds u. Klotz (1936), 131 Ohio St. 447, 452. The proper forum for such a case is the criminal courts.

Ensley v. City of Dayton, Ohio, 2nd Dist. No. 14487, 1995 WL 491116. In

Garano v. State, 37 Ohio St.3d 171, 524 N.E.2d 496 (1988) the Mahoning

County Court of Appeals upheld a declaratory judgment that Garano Vending's

video poker machines were not considering gambling and upheld a lower court

injunction which prohibited prosecution of Garano for gambling. This Court

reversea, and in so doifrig, announced that civil lawsuits seeking to restrain

prosecutors from enforcing valid criminal laws are not to be entertained by

Ohio courts. As this Court held: "[u]nless the police seek to enforce an

unconstitutional or void law, we will not inhibit their efforts to enforce the

law." Garano, at 499, citing Troy Amusement Co. v. Attenweiler, 187 Ohio St.

28 460, 30 N.E.2d 799 (1940); VFW u. Sweeny, 64 Ohio Law Abs. 277, 111 N.E.2d

699 (1952). No plaintiff in this case has sought a declaration that Ohio's anti-

gambling statutes are unconstitutional or otherwise void, nor has Respondent

made any finding that Ohio's gambling statutes are unconstitutional or

otherwise void.

38. Despite the illegitimacy of pre-adjudication declaratory criminal judgments,

Respondent has chosen to grant declaratory and injunctive relief through the

issuance of her TRO decisions, each of which declares that "[t]he

businesses/plaintiffs are sweepstakes establishments operating pursuant to

Ohio law; that the business activity is not gambling and is not prohibited by

Ohio law." See Respondent's June 13, 2012, June 18, 2012, June 22, 2012, and

June 25 2012 Journal Entries, supra.

39. By enforcing a TRO that by its very terms seeks to enjoin Relator from

pursuing criminal charges against individuals that may have violated Ohio

...__. .. la_xr , R e9p'nnnrlAnt" ....,a_.,is ahiiainv her n ennitah _ la.y^..,...s.nnwnr__ anrl intarfering _ witli R.elator's

prosecutorial discretion by granting injunctive relief that prematurely

determines whether crimes were committed and precludes Relator's ability to

prosecute criminal violations of Ohio gambling law against the named

plaintiffs and/or others. Respondent's conduct therefore is an unwarranted

and illegal intrusion by a judicial officer that interferes with Relator's

executive and independent prosecutorial discretion to enforce Ohio law.

29 40. By allowing the plaintiffs to conduct discovery on Relator and his employees,

Respondent Russo is abusing her equitable power by employing Ohio's Rules of

Civil Procedure to interfere with the Prosecuting Attorney and subject him to

discovery concerning his rationale for determining that the conduct of the

plaintiffs (and similarly situated criminal defendants) violates Ohio's gambling

laws, the evidence upon which he based that determination, and the policy

judgments behind his enforcement of Ohio's criminal statutes. This will cause

a chilling effect on communication within the executive branch of government,

and impede the ability of the Prosecutor to fulfill his statutory obligations. In

sum, it will interfere with and inhibit his ability to enforce the valid criminal

laws of this state that prohibit gambling.

41. An appeal following Respondent's improper decision to grant injunctive relief

that enjoins Respondent from pursuing criminal charges is an inadequate legal

remedy. In the context of an extraordinary writ, an appeal is inadequate if it is

^t .,^ uplctc .^^ its ..atu.e, be..ef:c.^^ •, nd nrl^^ Cfnfo o-v ro) JNirLnlc ,

Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities, 72 Ohio St.3d

205, 209, 648 N.E.2d 823 (1995). Relator has already brought criminal charges

against other defendants for identical conduct. Respondent's improper

declaration that the plaintiffs "are sweepstakes establishments operating

pursuant to Ohio law; that the business activity is not gambling and is not

prohibited by Ohio law" will impair Relator's pending criminal prosecutions of

such enterprises and expose Relator to a charge of malicious prosecution. See

30 Respondent's June 13, 2012, June 18, 2012, June 22, 2012, and June 25 2012

Journal Entries, supra.

42. Even if Respondent's decision to grant a TRO enjoining the prosecutor from

seeking criminal charges against plaintiffs-intervenors were a final appealable

order, such a remedy is not complete in its nature, beneficial, and speedy

because the statute of limitations on criminal conduct, in addition to

allegations of pre-indictment delay, would accrue against Relator while

extensive appellate litigation took place to decide whether Relator can be

enjoined from seeking a criminal indictment against an individual for conduct

that the prosecutor has determined to violate Ohio law. Nor would the

appellate litigation resolve the cloud over the pending criminal charges against

other defendants for functionally identical conduct as the plaintiffs-

intervenors.

ALTERNATIVE WRIT REQUESTED dR Pnrenant tn C f!f Pran R 10G.' Ro1o+^

Honorable Court issue an Alternative Writ immediately staying all proceedings

before Respondent relating to the issuance of a TRO in this matter. Relator

makes this request because Respondent's TRO and abuse of her equitable

power is actively interfering with an ongoing criminal case, is interfering with

Relator's ability to investigate and pursue criminal charges against additional

suspects, and is subjecting Relator to discovery pursuant to the rules of Civil

Procedure that will infringe upon Relator's independent prosecutorial

31 discretion, and will force Relator to disclose attorney work product and

confidences, as well as confidential grand jury and confidential law

enforcement material. Relator's discovery responses are due July 9, 2012. If

Relator is forced to submit to discovery, the harm will have already occurred

prior to the adjudication of this complaint. Relator therefore requests that this

Honorable Court issue an immediate Alternative Writ staying all TRO

proceedings before Respondent in this matter.

PRAYER FOR RELIEF

44. The above paragraphs are re-alleged and incorporated herein.

WHEREFORE, Relator requests that this Court issue an Alternative Writ

staying all proceedings before Respondent relating to the issuance of a TRO, and

further requests that this Honorable Court issue a Writ of Prohibition barring

Respondent Russo from conducting judicial proceedings and determining prematurely in a civil action that factually disputed conduct is not a violation of

(lhi.^. .,...... ^ l .^..^.....^.x, anfl ^^_.,.,^^.,^aa^b frn.. m in+orfnrino^ . a..__ _..,_»...,_xxTith Ralatnr'anrnaorntnrinl .. t._ ...... __.,._ .,._.,.,_...._^__ rlicrrPtinn ... bv3 nrevent.ino' r-" . ______a

Relator from investigating and pursuing criminal charges against individuals and entities.

32 VERIFICATION

I, WILLIAM D. MASON, Prosecuting Attorney for Cuyahoga County, Ohio, verify that I have read the foregoing Petition and Complaint for a Writ of Prohibition, and that the foregoing allegations are truthful and accurate to the best of my knowledge and belief.

'I` -} -/ -z-- William D. Mason, Date Cuyahoga County Prosecuting Attorney Irl Sworn to and subscribed in my presence this ? day of July, 2012.

O^ ,r

Mr^•,x^r^ ss^oN ^r^ ^ ^rc^^K^rrov Pk 2.c.

Notary Public

33 AFFIDAVIT OF DAVID G. LAMBERT

STATE OF OHIO SS: COUNTY OF CUYAHOGA

David G. Lambert, being first duly sworn, deposes and says that the following

specific details support the claim for a writ of prohibition and alternative writ:

1. I am an assistant prosecutor employed in the office of Cuyahoga County

Prosecuting Attorney William D. Mason, and currently hold the position of

Chief of the Civil Division.

2. On May 30th, 2012, a Cuyahoga County Grand Jury indicted 10 individuals and

7 companies in a 70-count indictment for operating, or working in close

cooperation with, the owners of an intricate internet gambling system known

as "VS2." The VS2 software is controlled by individuals at the New Jersey

headquarters of VS2 Worldwide Communications, LLC. All of the parties were

indicted for Engaging in a Pattern of Corrupt Activity, Gambling, and Money

T.AlnldPr1YlA' for tliPlr respective roles in nrn^^irJir^rr a _'"_ "__"__ _ ..t....,.,a.., ^..^.,., ... 1...... 5^ uauintaiiaiiag, aild

perpetuating an internet gambling system that they have tried to conceal by

renaming/describing their activities as operating "internet sweepstakes."

3. The predominant modus operandi of retail internet sweepstakes cafes is to

claim that they operate legitimate, non-gambling businesses, and that the

sweepstakes they operate are merely promotional events to increase

participation in their legitimate businesses. Such operators claim to operate

1 businesses in competition with other legitimate retailers such as Kinko's (as to

internet access) or Sprint or Verizon (as to long distance phone cards).

4. On May 30, 2012, the same day that the aforementioned criminal indictments

were returned, Relator sent a letter to numerous retail business

establishments in Cuyahoga County (hereinafter "Internet Sweepstakes

Cafes") warning them that they could be subject to criminal prosecution if they

did not cease illegal gambling activities. The letter read as follows:

The Cuyahoga County Prosecutor's Office has identified your establishment as having an Internet Sweepstakes gaming system operating on its premises. Please be advised that "Internet Sweepstakes Cafes" are gambling establishments. Ohio Revised Code Section 2915.02(A)(2) prohibits conducting "sweepstakes" games just as it does any other form of poker or slot machines not specifically exempted in the Revised Code.

Gambling is illegal in Ohio and the Ohio Constitution permits only four locations in the State where gambling is permissible.

This Office cannot permit gambling and gaming under the guise of Internet Sweepstakes Cafes. The Cuyahoga County Prosecutor's Office does not intend to bring any action against you or your

e,FtAbhRbYYlPllt. At th1Ct.1mF?____" ___-_. _I »___,_.,llirPrt .,__...that ^.,...vnn rnaco.,.,.....,., an,, .....^ Tntornot....,.,^....^ Sweepstakes Cafe operations that are currently on-going and permanently close this aspect of your business. Any individual who continues to operate an Internet Sweepstakes Cafe will have their facts presented to a Grand Jury for criminal prosecution and forfeiture.

(A copy of the May 30, 2012, letter sent to the owner(s) of JozC Marketing,

LLC, is attached hereto as State's Exhibit 1). Relator's May 30, 2012, letter

did not operate to close any business and did not confiscate any property.

Instead, Relator's letter warned individuals and entities that Relator believed

that part of their conduct associated with operating an unlawful gambling

2 business constituted a violation of Ohio criminal law and Relator could seek

indictment if the business owners did not cease their conduct.

5. Although both Respondent and the recipients of the letters have maintained

that the letter "involuntarily closed" the internet cafes, the letter did not close

anything. First, the letter only addressed Internet Sweepstakes and directed

the operators to close "that aspect of their business." Id. Moreover, the letter

simply warned of future prosecution, as Relator's assistant argued at a June 5,

2012 hearing before Respondent:

The cease or desist letter is merely a statement of fact that goes out to an owner that gives them fair notice that if you continue to engage in this activity you will be prosecuted. * * * You may be prosecuted, but even if it says ["]You will be prosecuted,["] that's a perfectly appropriate exercise of discretion by a prosecuting attorney. **^ A cease and desist letter is - is not a criminal prosecution. All it is is a letter by the prosecutor telling someone I may prosecute you in the future if you keep doing this. This is generally considered to be an act of cooperation and mercy that the prosecutor shows to people as opposed to springing a prosecution on them and then they cry

and cav_^ , Whv .. __1 didn't _ I vmi_ __ t.all ____ mP T-_- waa _ ..iininu -_ ___ enmPthina______a wrnna• T don't want to violate the law; I'll comply with the law.

(June 5, 2012 Tr. pp. 18; 22-23, attached hereto as State's Exhibit 2).

The TRO

6. On June 4, 2012, J&C Marketing, LLC, filed in the Cuyahoga County Court of

Common Pleas, a Complaint for Declaratory Judgment seeking preliminary

and permanent injunctive relief, together with a Motion for Temporary

Restraining Order against Relator in his capacity as Cuyahoga County

Prosecutor, seeking to:

3 a. Enjoi[n] [Relator's] May 30, 2012, cease and desist letter to Plaintiffs internet sweepstakes cafes located in Brook Park and Parma Heights, Ohio; and

b. Enjoi[n] Relator from enforcement of Ohio Revised Code §2915 et seq. against Plaintiffs internet sweepstakes operations in Brook Park and Parma Heights, Ohio.

(A copy of the J&C Marketing, LLC's June 4, 2012, Motion for Temporary

Restraining Order is attached hereto as State's Exhibit 3). The case was

docketed before Respondent and assigned case number CV 12-784234.

At an initial hearing on June 5, 2012, Relator's assistant argued that

Respondent had no equitable jurisdiction to restrain a criminal prosecution:

Not every criminal defendant has the ability to come into court and say, I fear I'm going to be indicted for the alleged criminal conduct, therefore I want a common pleas judge to issue a TRO and an injunction restraining the prosecutor for prosecuting the case.

* * * Generally, courts of equity will not intervene to enjoin the enforcement of the law by prosecuting officials and have no jurisdiction to enjoin pending or threaten[ed] criminal prosecutions.

(June 5, 2012 Tr. 16, attached hereto as State's Exhibit 2).

8. During the June 5, 2012 hearing, Respondent expressed her concern that the

enforcement actions of the Cuyahoga County Prosecutor might be different

than the actions of the other 87 county prosecutors in different counties,

thereby placing Cuyahoga County internet cafes at a cornpetitive disadvantage.

She explained: "If truly the State believes that this is illegal, this action by one

prosecutor has said in one count it can't be - it can't go on, but yet if they move

across the line to Lake or Summit suddenly they have a business." (June 5,

2012 Tr. p. 21, attached hereto as State's Exhibit 2). "We're talking about

4 cease and desist letters. We're talking about a state action that affects

commerce in one of 88 counties." Id.

9. During a hearing that the Court held on June 13, 2012, Relator's assistant

renewed the State's objection to Respondent using the TRO process to pre-

adjudicate the legality of allegedly criminal conduct:

MR. LAMBERT: The first issue I'd like to address is the propriety of doing what the plaintiff asks in a TRO context. This is not a preliminary injunction hearing. It is a temporary restraining order hearing. A temporary restraining order, the function of a temporary restraining order is to preserve the status quo ante. The status quo when the plaintiffs came into this Court was that they had shut down their business. If they want to have you order that those business may reopen, that would be done by means of a mandatory injunction against Prosecutor Mason. It would not be a proper subject of a temporary restraining order because it does not preserve the status quo ante. In fact, it overturns the status quo ante.

....b....^^..^^...... ^...... ^.....aaronmon4a nf rnrnncol T^ ....aa.....hnlinva a.,ic a^.at.^..p..^ imnrnnnr ...^^.....annrlnr ..^^.. tho ..a.aarivil rn1Pn^...a.....

MR. LAMBERT: I'm not saying we agree to disagree, I'm urging on the Court that it is, it would be ill advised under Ohio law to

5 grant a remedy when the facts of each case would be unique; Those facts are gonna'[sic] make the difference between whether or not this is gambling or is truly an internet sweepstakes.

(June 13, 2012 Tr. pp. 21-22, attached hereto as State's Exhibit 4).

10. During the June 13, 2012 hearing, Respondent made a point to distinguish

between the plaintiffs affected by her TRO case and the criminal defendants,

explaining that she did not believe that the plaintiffs were "asking [her] to

enjoin criminal conduct. This is a civil proceeding with a specific civil remedy

being sought that has to do with the definition of gambling. Id. Respondent

also took care to distinguish between the class of plaintiffs in her TRO case

that were distinguished from the defendants in the criminal case by means of

the software employed for the alleged gambling:

THE COURT: Let's just clarify for the record. None of the plaintiffs in this case are subjects of the criminal prosecution, and none of the plaintiffs in this case are using the software program that is the subject of that criminal prosecution. So I just want that clear on the record. That these are two different sets of software. And I made it clear at the beginning that I will not allow anybody tn narticinatP in thi.c cacn that ia inflPnrl ncino tha anftwara nrnoram that is the subject of the criminal case.

Id. at 21-22. Respondent reiterated her belief that her conduct in granting the

TRO would not impact the prosecutor's discretion:

THE COURT: I don't know if that's what their goal is. Their goal is to reopen their business. Your office chose, again for whatever reasons your office has, to not charge certain people and to charge others. And I expect that you will vigorously prosecute those and they will be vigorously defended, and all the elements of that crime, if they are proven, will result in guilty; and if not proven, result in not guilty verdicts. But none of those people are involved in this case. So no, I don't agree with you that they are asking me to enjoin criminal conduct. This is a civil proceeding with a specific

6 civil remedy being sought that has to do with the definition of gambling.

And quite frankly, I believe that there is the possibility that even in the event this Court finds these particular plaintiffs are sweepstakes cafes for purpose of compliance with the statute, that that does nor preclude your office from prosecuting others, or presenting evidence perhaps at a later date that would contradict the evidence presented here that said that they were gambling.

MR. LAMBERT: Let me respectfully suggest, your Honor, the point that you are making is one of the reasons articulated by Ohio courts why a Court in your position should not issue an injunction because it won't do anyone anyone[sic] any good if it's a completely fact- intensive issue is; are they truly paying a price to get internet phone cards, time on the Internet, or are they truly paying a price to gamble

THE COURT: If that were true, Mr. Lambert, if that were the only distinction, then everybody would have been charged. And everybody wasn't charged. Some were given cease and desist letters. So there was some culling process that went on at the prosecutor's office. Which, again, I don't want to know and I don't care to know. But we all would agree that there is a difference in software companies, that is clear.

So I do think that it's appropriate for me to hear the TRO. And I don't see it as interference in any way with the the criminal case; thnsP arP cenarat.a iccuac_ thev are aanerate Gnftware matters.

Id. at 35-37.

11. Following the hearing, Respondent then filed a journal entry on June 13, 2012,

which stated:

The court grants the TRO and makes the following findings: that the plaintiffs herein (including intervening plaintiffs) are not

7 utilizing the VS2 software which is the subject of the pending criminal case; that none of the plaintiffs herein are subjects of any criminal proceeding; that the businesses/plaintiffs are sweepstakes establishments operating pursuant to Ohio law; that the business activity is not gambling and is not prohibited by Ohio law; that the individual localities have made a determination that the businesses are lawful enterprises and issued permits and/or licenses to these plaintiffs; that the plaintiffs were operating prior to the enactment of HB386 and are therefore grandfathered in pursuant to that legislation, provided that they comply with the registration requirements; that the plaintiffs were involuntarily closed by law enforcement and have successfully proven they are entitled to the TRO, being a court order that permits them to re-open immediately and to begin compliance with the state's regulations as contained in HB386;

The court also finds that in its review of the pleadings and the arguments, that the plaintiffs have satisfied all necessary elements for the granting of this TRO and specifically finds that: the plaintiffs have demonstrated a likelihood of success on the merits; that the TRO is necessary to prevent irreparable harm to the plaintiffs and there is no other remedy at law; that the closing of the businesses has resulted in unemployment of individuals and lost business income, and the cease and desist letters have placed these plaintiffs at a competitive disadvantage with similarly situated businesses throughout Ohio and outside Cuyahoga County; that the balance of harm requires the issuance of the TRO and to return the nartiae to t.hPir racnect.ivP nnsitinn.c (etatnc nnn) nrinr +n the issuance of the said cease and desist letters; that the public interest is best served by the granting of the TRO as the businesses have received licenses/permits from local governments, are not operating in violation of Ohio law (based upon the pleadings and argument) and that the legislature has specifically permitted the business of sweepstakes enterprises.

That no bond is required of any plaintiff.

Further the parties have agreed that the term of this TRO is effective immediately and through 7/23/12; hearing set 7/23/12 at l0am. The extension of the TRO may occur only by agreement of the parties. (The court notes that the agreement of the defense to the extension of the TRO does not constitute an agreement with the issuance of the TRO).

8 (A copy of Respondent's June 13, 2012, Journal Entry is attached hereto as

State's Exhibit 5, emphasis added).

12. In short order, following the hearing on June 13, 2012, numerous owners of

Internet Sweepstakes Cafes have sought and been granted plaintiff-intervenor

status by Respondent. Thereafter, Respondent has issued substantially

similar journal entries granting the TRO as to the intervenors. (A copy of

Respondent's June 18, 2012, Journal Entry, June 22, 2012 Journal Entry, and

a copy of Respondent's June 25, 2012 Journal Entry is attached hereto as

State's Exhibit 6, 7, and 8, respectively). Respondent also held hearings on

June 18, 2012, June 22, 2012, and June 25, 2012, in which she entertained

arguments on allowing the aforementioned plaintiff-intervenors to join her

case. (A copy of the June 18, 2012, hearing transcript, as well as the June 22,

2012, and June 25, 2012 hearing transcript is attached hereto as State's

Exhibit 9 and 10, respectively).

13. During the June 22, 2012 hearing, counsel for Plaintiff-Intervenor ISHU, Inc.,

Robert P. Desanto, explicitly argued for a TRO on the grounds of what he

perceived to be inconsistent prosecutorial enforcement of Ohio's gambling laws:

***

9 We think that it is important in the public interest because the fact that you can't have a law sporadically enforced in the State of Ohio where in most of the counties it's not enforced as gambling against the sweepstakes owners, but in Cuyahoga County apparently it is and that needs to be resolved.

We don't think in the early stages of these proceedings, we don't think that our entrance into this would in any prejudice anyone. We are similarly situated as all the other people, other than perhaps the telephone internet or the telephone businesses. We just do internet. We ask that if Mr. Mason is not restrained in his efforts to shut us down, we would face criminal prosecution and damages without reason.

(June 22 & 25, 2012 Tr. pp. 39-40, attached hereto as State's Exhibit 10,

emphasis added). In response, Relator's assistant argued that prosecutorial

discretion should not be a basis to grant a TRO:

The idea that there is a competitive disadvantage in other counties; there is no law that says every prosecutor has got to prosecute every crime. Prosecutorial discretion is vested in every county prosecutor and you cannot come into court and say, they are not prosecuting, whatever the crime, prostitution, in this county, therefore I should be able to engage in prostitution in this county. Because otherwise it's unequal enforcement throughout the State. Unequal enforcement is not an excuse to violate the law.

Id.

14. During the June 25, 2012 hearing, Respondent abandoned any pretense of

separation between the subject matter of the criminal case and her TRO when

she chose to allow plaintiffs using the VS2 software, which is the subject of the

pending criminal litigation, to intervene in the TRO litigation. Even further

undermining the illusion of any separation, the same lawyer representing the

criminal defendants-indeed, VS2 Software itself-showed up at Respondent's

June 25, 2012 TRO hearing and was allowed by Respondent to argue for

10 allowing VS2 plaintiffs to join the TRO. Id., at 88-100. At that point, Relator's

assistant vigorously objected:

Id. at 91. The attorney, Mark E. Schamel, identified himself as counsel after

having been granted pro hac vice status and appeared in the criminal litigation

on behalf of his clients, criminal defendants Phillip R. Cornick and Richard

Upchurch, VS2 World Wide Communications, LLC and P&E Technologies, Inc.

(See Motion for Admission to Appear Pro Hac Vice, and Motion for

Reassignment filed in Cuy. Co. Court of Common Pleas Case No. CR 563092,

attached hereto as State's Exhibits 11 and 12, respectively).

15. During the June 25, 2012 hearing, the Court also announced that she intended

to allow the parties to depose Relator:

But I will say this: I certainly recognize that if I grant the TRO to VS2 software people, it's going to subject everybody involved to discovery and Mr. Lambert believes that is a problem.

11 b I happen personally to believe that's a double-edged sword for both of you. If I grant the TRO and place you on a discovery schedule, it means that Mr. Lambert may be concerned about the fact that you might get discovery from them that might impinge on the criminal case, but equally he can get discovery from you, unless you exercise the Fifth Amendment right.

So what I would say to you is that if I grant the TRO and put you on a discovery schedule, if there is a reason that somebody has to invoke the Fifth Amendment right, although I don't see VS2 as not part of my case, but if that comes up he can always ask for a stay as to that portion of the civil case and, of course, I could grant that.

I have heard arguments about the TRO. I have asked some questions that I felt were important, given the fact that the VS2 software is not somehow distinctly different from the other software. I don't see any reason why the TRO shouldn't also apply to the VS2 software defandants,

Id. at 95-7.

16. Between June 26, 2012, Relator has received numerous discovery requests

from the plaintiffs-intervenors in the TRO case, including Interrogatories,

Requests for Production, Requests for Admissions, and Notices of Depositions

seeking to depose Relator.

17. On June 28, 2012, Relator filed a Motion for Protective Order seeking to

prevent discovery, requesting a protective order on the following grounds:

12 a. Requiring [Relator] or his employees to respond to civil discovery requests concerning a matter that is the subject of pending or potential criminal investigation impermissibly intrudes upon the activities of the Executive Branch of government and upon the prosecutor's ability to prepare criminal prosecutions free from interference by the judiciary.

b. Requiring [Relator] or his employees to respond to discovery requests concerning a pending or potential criminal investigations requires the disclosure of information and communications protected as Law Enforcement Investigatory Materials.

(A copy of the Motion for Protective Order is attached hereto as State's Exhibit

12).

18. On July 1, 2012, Respondent denied Relator's Motion for Protective Order.

Respondent did order that the plaintiffs-intervenors be precluded

[f]rom utilizing discovery to elicit from the defendant his legal opinion about what constitutes eambline.^ o, what------ennct.itut.PC --- a vinlatinn----.. nf _^..,nhin law his interpretation of any portion of the ORC as these are matters before the court and not proper avenues of inquiry in discovery; additionally, the plaintiffs are not permit to elicit from this defendant his personal opinions or understandings of how the sweepstakes business works, as that is the subject of the argument and expert opinion which will be addressed by the court at a hearing.

(A copy of Respondent's July 1, 2012 Journal Entry is attached hereto as

State's Exhibit 13).

19. Although Respondent's July 1, 2012 Order did grant some limited protection,

Relator's numerous discovery responses are due July 9, 2012 and Relator

13 anticipates that the plaintiffs-intervenors will abuse the rules of Civil

Procedure to infringe upon Relator's independent prosecutorial discretion, and

will force Relator to disclose attorney work product and confidences, as well as

confidential grand jury and confidential law enforcement material.

20. To illustrate the particularly onerous and abusive nature of the plaintiffs'-

intervenors' discovery demands, Relator has attached Interrogatories,

Requests for Production, and Requests for Admissions propounded by Cyber

Time Internet Cafe, Maple LLC, received by Respondent on July 1, 2012.

(Copies of Cyber Time Internet Cafe, Maple LLC's Interrogatories, Requests

for Production, and Requests for Admissions are attached hereto as State's

Exhibits 14, 15, and 16, respectively, as well as a copy of the ISHU, Inc. d/b/a

Internet Plaintiff, Ishu, Inc. Dba Internet Cafe's Combined First Request For

Production Of Documents And Interrogatories, attached hereto as State's

Exhibit 17). For example, ISHU Inc's demand requires Relator to "provide the

namea adrlreasac and tnlaphnnn nnrnhnra nf nnv anrl all agPnt.c anrl/nr

employees of the Cuyahoga County Prosecutor's Office and/or law enforcement

agency with direct or indirect knowledge of the specific operations * * * in

reference to the May 30, 2012 letter." (ISHU, Inc. d/b/a Internet Cafe's

Combined First Request For Production Of Documents And Interrogatories, at

4, attached hereto as State's Exhibit 17). In particular, ISHU, Inc.'s demand

for Interrogatories vividly illustrate the inappropriate and abusive manner in

which the Rules of Civil Procedure can be used to interfere with an ongoing

14 criminal investigation and to interfere with a prosecutor's exercise of independent discretion:

INTERROGATORY NO. 2: Please provide the names, addresses and telephone numbers of any and all "experts" the Cuyahoga County Prosecutor's Office and/or law enforcement agency have consulted and/or retained that have direct or indirect knowledge of the specific operations of Plaintiff, ISHU Inc. DBA Internet Cafe and/or its sweepstakes devices in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

INTERROGATORY NO. 3: Please identify the date when the Cuyahoga County Prosecutor snecificallv determined that the specific operations of Plaintiff, ISHU Inc. DBA Internet Cafe were "gambling establishments" in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees[.]

TNTFRR.(nCCAT(1RY NO ri• P1Pa.cP irlPntifv nnd cnPCifirallv lict any and all documentation related to the software and design for each and every sweepstakes device individually used specifically by the aforementioned Plaintiff that the Defendant used in its determination that Plaintiffs operations were "gambling establishments" in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

15 INTERROGATORY NO. 7: Please identify and list each sweepstakes devices used in aforementioned Plaintiff's establishment that was determined to be a gambling device and identify specifically how each machine was in violation of Ohio Revised Code Section 2915.02(A(2) in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

INTERROGATORY NO. 8: Please identify and list any other pattern of conduct specifically to the aforementioned Plaintiffs establishment, not previously answered in Interrogatory No. 7 and identify specifically how and in what manner said conduct was determined to be in violation of Ohio Revised Code Section 2915.02(A)(2) in reference to the May 30, 2012 letter from the Cuyahoga County Prosecutor delivered to aforementioned Plaintiff and its agents and employees.

Id.

21. To date, Respondent has allowed approximately 23 plaintiffs-intervenors to

join the TRO litigation. They are: J&C Marketing, LLC; Izdihar "Esther"

Najjar d/b/a/ Cyber Oasis; Cyber World Entertainment Corporation; A J & N,

Inc.; Internet Escape, LLC Gamers Club of North Olmsted, Inc.; Garth and

Lindsev. LLC: Roval Palms SweenG- LT.C: R(`r Rrnarlwav--°----•------320 Tne •(lh;n

Internet Cafe, LLC; Le Royale, LLC; JPAS, Inc.; A1123, Inc.; ISHU, INC.; CTD

Entertainment, LLC d/b/a Hot Slots Internet Cafe; LV & IBNEE, LLC d/b/a

Hot Spot; AMA Ventures, Inc. d/b/a/ Internet Galaxy; Nova's Internet

Sweepstakes Cafe; JimKat, LLC, d/b/a Cyberspace Internet Cafe; Tritsarolis

Investments, Inc., d/b/a Internet Island; Cyber Space Westlake, LLC; Land of

the Loot and Piggy Bank; SOR, LLC dfb/a Lucky Palms and Feelin Lucky,

16 LLC; Las Palmas III, LLC; Cyber Time Cafe Maple Hts., LLC; Page-Jaq, LLC;

and New Heights Business Center, LLC.

22. At no point in the proceedings has Respondent heard any actual testimony or

considered any properly admitted evidence. Nevertheless, Respondent has

made the explicit factual determination that the plaintiffs "are sweepstakes

establishments operating pursuant to Ohio law; [and] that the business

activity is not gambling and is not prohibited by Ohio law" based solely upon

the informal arguments of lawyers at the TRO hearings.

FURTHER AFFIANT SAYETH NAUOHT.

Sworn to and subscribed in my presencei}s ^^day of July, 2012.

atthew E. Mey Attorney at La -S te of Ohio My Commission s no expiration per R.C. 147.03

17 AFFIDAVIT OF JAMES DEAN MAY

STATE OF OHIO } } SS: COUNTY OF CUYAHOGA }

James Dean May, being first duly sworn, deposes and says that the following

specific details support the claim for a writ of prohibition and alternative writ:

1. I am an assistant prosecutor employed in the office of Cuyahoga County

Prosecuting Attorney William D. Mason, and currently hold the position of

Assistant Prosecutor assigned to the Economic Crimes Division.