Telxon Corporation, And Symbol Technologies, Inc. Plaintiff-Appellee, Case No. 07-2321 -vs-
Smart Media of Delaware, Inc., And William Dupre On Appeal from the Court of Appeals Ninth Appellate District Summit County, Defendant-Appellant. Ohio, Case Nos. 22098, 22099
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT WILLIAM DUPRE
ROBERT D. KEHOE (0017466) J. BRIAN KENNEY (0073994) KEHOE & ASSOCIATES, LLC 900 Baker Building 1940 East Sixth Street Cleveland, Ohio 44114 216.621.1500 216.621.1551 (fax) rdkehoekkehoelaw.net
ATTORNEYS FOR APPELLANT, WILLIAM DUPRE
RICHARD WERDER, JR. (0011533) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue 22"d Floor New York, NY 10010 212.849.7231 212.849.7100 (fax) R ATTORNEY FOR APPELLEE TELXON CORPORATION DEC 2 0 Z007 MHK OF QOGJHfi SUPREME COURT qFOHI0 GREGORY HALL MELICK (0065694) THE MELICK LAW FIRM, LLC 590 Arborside Lane Suite 100 Avon Lake, Ohio 44012 440.930.5811 440.348.2347 (fax)
ATTORNEY FOR APPELLANT SMART MEDIA OF DELAWARE, INC.
JOHN C. FAIRWEATHER (0018216) BROUSE MCDOWELL 388 South Main Street Suite 500 Akron, Ohio 44311 330.535.5711 330.253.8601 (fax)
ATTORNEY FOR APPELLEE SYMBOL TECHNOLOGIES, INC. TABLE OF CONTENTS
Paee
EXPLANATION AS TO WHY THIS IS A CASE OF GREAT PUBLIC INTEREST ...... 1
STATEMENT OF THE CASE AND FACTS ...... 4
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW ...... 6
Proposition of Law No. I:
The Due Process Clause Of The Fourteenth Amendment Is Violated When A Judge, Who Has A Duty To Disclose A Longstanding Political Relationship With A Litigant And A History Of Receiving Significant Direct And Indirect Contributions From The Litigant, Fails To Either Disclose The Same Or Recuse Himself ...... 6
Proposition of Law No. II:
The State Of Ohio Provides A Remedy For A Denial Of A Litigant's Due Process Rights ...... 9
Proposition of Law No. III:
Under Ohio Law, The Original Decision Of The Ninth District Court Of Appeals Should Be Set Aside ...... 12
CONCLUSION ...... 14
CERTIFICATE OF SERVICE ...... 15
APPENDIX Appx. Page
Journal Entry of the Ninth District Court of Appeals (November 5, 2007) ...... 1
Opinion of the Ninth District Court of Appeals (November 5, 2007) ...... 2
Recusal Journal Entry the Ninth District (January 16, 2007) ...... 17
Supreme Court Certificates of Assignment (January 7, 2007) ...... 19 I. EXPLANATION OF WHY THIS CASE IS OF PUBLIC INTEREST AND INVOLVES A CONSTITUTIONAL OUESTION
This Court should accept jurisdiction of this matter because the integrity of Ohio's judicial system and a litigant's Fourteenth Amendment right to due process are in grave peril.
When faced with indisputable evidence that a "$212 million plus judgment [was] erased on
appeal by a panel whose local political party received approximately $1,000,00.00 in
contributions from a very financially interested individual [Bob Meyerson]," the majority of the
appointed Panel focused on "whether [Appellants] have a procedural avenue available to seek
their requested relief." Op. at pgs. 4 & 15. Incredibly, the majority answered its own inquiry in the negative and concluded that there was no remedy for the denial of Appellant Dupre's right to
an impartial tribunal. Id. at p. 5.
The niajority's decision, if left intact, amounts to nothing less than the State's denial of
Appellant Dupre's Fourteenth Amendment right to an "impartial tribunal." See, Stand. Alaska
Prod. Co. v. Schaible (9" Cir. 1989), 874 F.2d 624, 626. Such a result benefits no one as it
serves only to invite federal jurisdiction, and inevitably, intervention by a federal court.
Independence Public Media v. Penn. Public Television Network Comm. (E.D. 1993), 813 F.
Supp. 335, 341 (citing Patsy v. Bd. of Regents (1982), 457 U.S. 496, 503 and noting that "the very purpose of § 1983 was to interpose the federal courts between the State and its people, as
guardians of the people's federal rights - to protect the people from unconstitutional action under
color of state law, whether that action be executive, legislative, or judicial.")
Even if one were to ignore Appellant Dupre's right to an impartial panel, as did the majority below, this matter is still one of great public import because it calls into question the very integrity of Ohio's judicial system. In addition to the indirect contributions that were received by the author of the Ninth District's original decision, Judge Batchelder received
1 $15,000.00 directly from Bob Meyerson, visited the Meyersons' home, learned of Bob
Meyerson's involvement when he read the transcript, and then stepped down from the bench to
run for the legislature on the very day his opinion was announced. Op. at p. 4. Notwithstanding
the "mandatory" requirements of Canons 3 and 4 of the Code of Judicial conduct, Judge
Batchelder did not disclose his prior relationship with the witness in the trial who was still
holding $7.6 million worth of Telxon/Symbol shares. Id. 12 ("At the very minimum, disclosure
to the parties of Meyerson's impressive contributions and their potential for the appearance of
impropriety was an absolute ethical mandate within the principles of Canons 3 and 4."),
The violence that this type of conduct unleashes upon the public's faith in the system can
not be overstated. Major contributions from the largest contributors to judges, who then preside
over matters involving those contributors, erodes the public's confidence like flood waters
flowing through a failing dam. At some point, the levy breaks. More than 70 percent of
Americans believe that judicial campaign contributions have at least some influence on judges' decisions in the courtroom, according to a 2004 opinion survey conducted by Zogby
International. Justice at Stake Campaign, March 2004 Survey Highlights: Americans Speak Out
On Judicial Elections (2004), @ httn://faircourts.ora/files/ZogbvPollFactSheet.PDF. As a result, 79 percent of the registered voters polled believe that "[j]udges should be prohibited from presiding over and ruling in cases when one of the sides has given money to their campaigns."
Greenberg Quinlan Rosner Research & American Viewpoint, Justice At Stake Frequency
Questionnaire 8 (2001), @ http://www.ggrr.com/articles/1617.
' Judge Batchelder's failure to disclose also prejudiced this Court's ability to asses the degree of public import associated with Dupre's initial memorandum in support ofjurisidiction. This Court originally declined jurisdiction by a vote of 4-3 without knowledge of the existence and/or maginituted of the contributions made by one of the parties.
2 The viewpoint expressed by the public is not limited to laypersons. According to a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, nearly half of the judges surveyed (46 percent) themselves believe that campaign contributions to judges influence
their decisions. Greenberg Quinlan Rosner Research & American Viewpoint, Justice At Stake
Frequency Questionnaire 5 (2002), htti)://ww-w.gqrr.com/aAicies/1617/1411 JAS pd£ As a result, more than 55 percent of state court judges "should be prohibited from presiding over and
niling in cases when one of the sides has given money to their campaign." Id. at 11.
In addition to the obvious shortcoming contained within the majority's decision, the appointed Panel also engaged in procedural slight of hand in order to deny Appellant Dupre's motion to file an untimely application for reconsideration. Op. at pgs. 5-6. Recognizing that the standard for leave to file an application for reconsideration requires only a showing of extraordinary circumstances as set forth in Appellate Rule 14(B), the majority then added the additional requirement from Appellate Rule 26(A) notwithstanding the fact Dupre had not been granted leave to file the application. Id. The majority stated that Dupre had not demonstrated why an application for reconsideration, which he had yet to file, should be granted. Id. The majority's reasoning was entirely circular and nonsensical.
As Dupre had not yet been granted leave to file the application for reconsideration, he had not yet filed an application. Because Dupre had not yet filed an application for reconsideration, he could not show why the matter should be reconsidered. Accordingly, the motion `for leave' was denied. This ex post facto instanter requirement is contained neither in the language of the Appellate Rules nor corresponding case law. When the majority invented the requirement, they did not even provide Dupre with an opportunity to meet it. This type of procedural chicanery is reminiscent of actions undertaken by state courts during the Civil Rights
3 era and is not an effective barrier to federal enforcement. NAACP v. Alabama (1958), 357 U.S.
449, 457
STATEMENT OF THE CASE AND THE FACTS
On December 1, 1998, Appellee Telxon Corporation ("Telxon"), filed a complaint for declaratory judgment seeking a determination that it had not entered into any contracts and had not made any promises that could reasonably be relied upon. Appellants William Dupre
("Dupre") and Smart Media of Delaware, Inc. ("Smart Media") filed counterclaims and the case proceeded trial on August 25, 2003. In September of 2003, the jury returned verdicts in favor of
Appellants Dupre and Smart Media in the amounts of $6.2 million and $212 million respectively.
Unbeknownst to Appellant Dupre, a major witness in the trial, the former CEO of Telxon, and major shareholder in Telxon/Symbol, made extremely large contributions to the presiding appellate judge, Summit County Republican Party, the Ohio Republican Party, and the
Republican National State Election Committee, all while the matter was pending.2
The following is the majority's recitation of the record as set forth below:
Robert F. Meyerson, a one-time Chairman and CEO of Telxon, held an ownership interest through himself and/or his "affiliates" in the amount of 7.6 million dollars as of mid-January 2000. Appellees allege that Meyerson was not only a key witness in the case but also Judge Batchelder's largest and long standing contributor. At a time when Meyerson is said to have known about the pending litigation - as early as the spring of 2000 - Meyerson donated $50,000 to the Republican Party of Summit County. A battery of additional donations in the fall of 2000 is listed in the respective chronological amounts of $50,000, $110,000, $100,000, and $25,000, so that, all in all, Meyerson donated $335,000 to the county party during the calendar year 2000. (In October 2000 the party itself contributed $20,000 to Judge Batchelder's judicial campaign). During the year 2001, Meyerson donated an additional $202,500 to the county party. And in 2003, Meyerson donated
2 In addition to Meyerson's contributions to the Summit County Republican Party, Meyerson contributed $152,000.00 to the Ohio Republican Party, $632,000 to the Republican National State Election Committee (which in turn provided as much or tnore the ORP). See, The Ohio Secretary of State's Web Site.
4 $55,000 to the county party, earmarking $50,000 for the "Judicial Fund."
Also, for his 1996 campaign for the Ohio House of Representatives - prior to his elevation to the bench - Judge Batchelder allegedly received $15,000 from Meyerson, visited Meyerson at Meyerson's home to solicit the contribution and later entertained Meyerson at his (Batchelder's) home following receipt of the political contribution. That sum -$15,000 - is described as nearly one third of the total funds raised for Batchelder's House campaign for that election cycle.
Op. at pgs.3-4.
Notwithstanding his admitted knowledge of Meyerson's participation in the trial, Judge
Batchelder authored a vitriolic 119 page opinion on September 25, 2005, belittling the litigants, chastising their counsel, insulting the trial judge, and ultimately reversing the jury's verdicts.
The decision was not unanimous as Judge Carr, a Republican, showed considerable courage and dissented.3 Judge Batchelder then left the bench to again run for the Ohio House of
Representatives on the same day the decision was announced.
Appellants filed a notice of appeal with this Court seeking a reversal of the decision because: (1) Judge Batchelder's decision eviscerated controlling precedent; (2) Judge
Batchelder's decision substituted case law from foreign jurisdictions in order to justify the result that was ultimately reached; (3) Judge Batchelder ignored evidence and argument that supported
Appellants' position; and (4) Judge Batchelder's decision contained conclusions based upon facts that were not presented by the record. This Court declined jurisdiction on February 22,
2006, by a vote of 4-3. Two of the Justices from this Court who voted with the majority failed to
' After the initial appeal, Appellant Dupre leamed that the Chairman of the Summit County Republican Party, Alex Arshinkoff, is not known for his forgiving nature. The former Ohio Attomey General, Ji n Petro, indicated that Arshinkoff runs a "Tammany Hall" - style political machine- Two separate Republican Common Pleas Judges were forced to file affidavits of prejudice when Arshinkoff refused to take "no" for an answer in the Oriana Hoz se tnatter. See, http://www.newsummitrepublicans.conm/about/making-the-case.aspx
5 disclose tens of thousands of dollars in direct contributions from the Meyersons and possibly hundreds of thousands of dollars in indirect contributions through Republican party committees.
After this Court refused to reconsider the matter, again by a vote of 4-3, the $50 million bond that was posted by Symbol/Telxon was returned to them. For months, the matter was closed. Then on January 9, 2007, Smart Media filed a motion to vacate the judgment that was entered by the Ninth District Court of App,eals based upon the appearance of impropriety and possible bias. Three days later, the Akron Beacon Journal printed an article that attributed direct quotes to Judge Batchelder. Ex-Judge is accused of bias,- Company that lost $212 million verdict on appeal contends donations to GOP influenced decision. Phil Trexler; January 12, 2007.
Judge Batchelder indicated that he was close enough to Meyerson to have visited with him at his home, and that while he was presiding over the appeal Judge Batchelder knew that Meyerson had been a witness in the case. The entire Ninth District Court of Appeals thereafter recused itself.
Appellant Dupre joined in Smart Media's motion and also moved for leave to file an untimely motion for reconsideration pursuant to App. R. 14.
Chief Justice Moyer appointed an independent Panel to hear the motions, the parties filed additional briefs, and the decision that gives rise to this appeal followed.
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: The Due Process Clause of the Fourteenth Amendment Is Violated When A Judge, Who Has A Duty To Disclose A Longstanding Political Relationship With A Litigant And A History Of Receiving Significant Direct and Indirect Contributions From The Litigant, Fails To Either Disclose The Same Or Recuse Himself.
When arguing before the appointed Panel, Appellant Dupre practically begged the Panel not to pass on the substantive merits of the case. Dupre noted that he had an absolute right to an impartial tribunal, that he had not received one, and that if the Panel concluded that there was no procedural remedy for the wrong that had been committed, that his constitutional rights would be
6 violated. Unfortunately, Dupre's arguments fell upon deaf ears and now a federal question is directly before this Court.
As initial matter, Dupre notes that the proceedings herein and below are subject to the parameters of federal procedural due process. Specifically, "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law . ...." U.S. CONST. amend. XIV, §
1. The United States Supreme Court has determined that "a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause." Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428 (1982) (citing Martinez v. California, 444 U.S. 277, 281-82
( 1980); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).
As a matter of procedural due process, Dupre was entitled to a fair and impartial tribunal in the underlying case as well as on appeal. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 ( 1986);
Gibson v. Berryhill, 411 U.S. 564 (1973); Ward v. Village ofMonroeville, 409 U.S. 57 (1972);
In re Murchison, 349 U.S. 133 ( 1955); Tumey v. Ohio, 273 U.S. 510 (1927). As noted by Judge
Nader, the United States Supreme Court has held that actual bias is not a required to demonstrate a violation:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.
*** Such a stringent rule may sometimes bar trial by judges who have not actual bias and who would do their very best to weight the scales of justice equally between contending parties. But, to perform its high function in the best way `justice must satisfy the appearance of justice.'
7 Op. at p. 9, citing, In re Murchison, 349 U.S. at 136, and, Offutt v. United States (1954), 348
U.S. 11, 14.
Once it is determined that the Due Process Clause applies, the question of `what process is due' is one answered by the United States Constitution. Cleveland Bd of Educ. v. Loudermill
(1985), 470 U.S. 532, 541. The only other state supreme court that has addressed the issue of whether direct and indirect contributions, in significant amounts, constitutes to a violation of due process, reached the conclusion that it did. See, Pierce v. Pierce (Ok 2001), 39 P.3d 791. In
Pierce, the Oklahoma Supreme Court was presented with a case where an attomey who was appearing before a judge contributed the maximum amount allowed by Oklahoma law
($5,000.00), his relative contributed the maximum amount allowed by Oklahoma law, and where the attomey had solicited additional contributions. Id. at 798.
The Court held that the combination of factors resulted in the conclusion that the "judge's impartiality might reasonably be questioned." Id. However, the Court did not stop there. The
Court went on to note that due process "preserves both the appearance and reality of fairness, so important to a popular government, that justice has been done, ... by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him." Id. at 798-99, quoting,
Marshall v. Jerico, Inc. (1980), 446. U.S. 238, 242. The Court concluded that "[c]haracterizing the error to disqualify as a violation of due process shows that the decree must be reversed." Id.
Here, the facts are even more compelling. To recount: (1) the former Chairman of the
Board and CEO ("Chairman") of one of the parties had a pecuniary interest in the outcome of the litigation and was a key witness; (2) the candidate who eventually became the judge visited the
Chairman's home "in order to solicit a contribution;" (2) the Chairman and the Chairman's
8 family contributed $15,000 directly to that candidate; (3) the Chairman then contributed over
$650,000 to a county party between the time he leamed of the litigation and its conclusion on
appeal; (4) those contributions made the Chairman the largest contributor to the county party; (5) the county party then contributed $20,000 to the judge; (6) the case resulted in the largest verdict in the county's history; (7) while the case was on appeal, the judge who authored the appellate decision learned that the Chairman was a witness; (8) the judge who authored the appellate decision failed to disclose his relationship with the Chainnan to the parties; (9) the judge authored a factually and legally erroneous decision that inured to the benefit of the Chairman; and (10) when the information was discovered and called to the attention of the appellate court, the entire court recused itself. If this case does not invoke due process concerns resulting from campaign contributions to a sitting judge and/or his party while a matter is pending, then no such case exists.
Proposition of Law No. II: The State Of Ohio Provides A Remedy For A Denial Of A Litigant's Due Process Rights.
The majority's conclusion below, that the Appellants did not "have a procedural avenue available to seek their requested relief," is as flawed as it is unwise. Op. at p. 4. If the majority is to be believed, Ohio is the only State that can not remedy a miscarriage of justice when it is discovered after an appeal. See, i.e., Powell v. Anderson (Min. 2003), 660 N.W. 2d 107. As was noted by Judge Nader in the dissent, there were at least two, and arguably three, separate bases upon which the appointed Panel could have exercised jurisdiction over the matter. Article IV,
Section 3(B), of the Ohio Constitution provides that: "(1) The court of appeals shall have original jurisdiction in the following: *** (f) in any cause on review as may be necessary to its complete determination." Id. This Section of the Ohio Constitution has been read to afford appellate courts the ability to "declare the respective rights of the parties -- in other words, to
9 issue a declaratory judgment -- in order to achieve a complete determination of the issues raised
on appeal." Morningstar v. Morningstar (1990), 63 Ohio App.3d 653, 655.
Subsection (f) has been relied upon as authority to enable appellate courts to address
issues that are related to, or entwined with the parties' respective rights, but which were not
presented in the initial appeal. See, State v. Turpin (1969), 19 Ohio App.2d 116, 121 ("We hold
that, by reason of the long habeas corpus history, this cause here on review is such that it is
necessary to its complete determination for us to exercise the jurisdiction and determine whether
the indictment was valid or invalid, or sufficient or insufficient, to charge an offense under Ohio
law.") If the Panel determined that it had original jurisdiction under Article IV, Section
3(B)(I)(t) of the Ohio Constitution, then a motion to vacate the judgment pursuant to Ohio R.
Civ. P. 60(B)(5) was a proper vehicle. See, State ex. rel. Pajestka v. Faulhaber (1977), 50 Ohio
St.2d 41, 42.4
Once the determination regarding jurisdiction was made, then the majority was not, as it
claimed, obligated to "disqualify" Judge Batchelder ex post facto. Op. at 6 (noting that "we do not have the authority to disqualify a judge for an alleged violation of an appearance standard.")
The Panel was not being asked to disqualify Judge Batchelder (months after he heard the appeal).
Rather, the Panel was being asked whether Judge Batchelder's participation in the case gave rise to the appearance of impropriety and possible bias - a question the majority clearly did not want to have to answer. Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152, 154.
° There is also authority for the proposition that courts of appeals have "inherent" jurisdiction over their own orders so long as the matter has not been accepted for review by the Ohio Supreme Court. Compare, State ex. rel. Bitter v. Missig (1995), 72 Ohio St.3d 249, 252, with, Bd ofComm'r, ofOttarva County v. Marblehead (1995), 102 Ohio App.3d 306, 318. The argument for inherent authority is bolstered by the fact that Chief Justice Moyer saw fit to appoint the Panel.
10 Moreover, had the majority merely applied the law as written, it could have granted
Appellants' motion for leave to file an untimely application for reconsideration. The majority as
much as admitted that Dupre had established extraordinary circumstances, but then added a
requirement not found in existing law. Op. at pgs. 5-6. As Dupre had not been granted leave to
file an untimely application, he did not file the same. The reason the majority claimed that
Dupre could not have leave to file an application for reconsideration is that he did not explain
why the case should be reconsidered. Id. The missing "explanation" would have been set forth
in the application for reconsideration, which Dupre never received leave to file. That is the
entire function of such a pleading.
This type of gamesmanship was employed, to no avail, during a darker period in our
history by those States that attempted to deprive certain citizens of their constitutional rights.
See, Williams v. Georgia (1955), 349 U.S. 375, 389 ("Since his motion was based upon a
constitutional objection, and one the validity of which has in principle been sustained here, the
discretionary decision to the motion does not deprive this Court of jurisdiction to find that a
substantive issue is properly before us."); NACCP v. Alabama (1964), 377 U.S. 288, 297 ("The
consideration of asserted constitutional rights may not be thwarted by simple recitation that there
has not been observance of a procedural rule with which there has been compliance in both
substance and form."); NAACP v. Alabama, 357 U.S. at 457 ("Novelty in procedural
requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal
constitutional rights.") Dupre asks this Court: Was it really appropriate for the majority to go to
such lengths merely to avoid the reversal of a judgment that no one truly believes should be left
undisturbed?
11 Proposition of Law No. III: Under Ohio Law, The Original Decision Of The Ninth District Court Of Appeals Should Be Set Aside.
When it comes to the question of why the original judgment of the Ninth District Court of
Appeals should be set aside, it is difficult to improve upon the rationale stated by Judge Nader in
his dissent:
A $212,000,000.00 plus judgment erased on appeal by a panel whose local political party received approximately $1,000,000.00 in contributions from a very financially interested individual since the inception of the case, creates a classic scenario giving rise to every nuance of political influence in our courts which calls for self-disqualification. Meyerson and his associated entities contributed vast amounts of money for years to persons directly associated with this action and every local, state and national office holder with authority and position to affect judicial careers of those serving in the Ninth District. This must suggest to a reasonable observer a greater test of integrity of the court than the potential favoritism to another county employee. This most assuredly falls within the commendable purpose of Chief Justice Moyer's disqualification of every judge in Cuyahoga County to prevent the appearance of impropriety and restore confidence in the an independent judiciary.
One can only surmise another's intentions, for that knowledge is privy to that person alone. No suggestion or conclusion is proffered herein about the impropriety of any parties involved. To the contrary, the presumption of propriety has not been compromised by actual evidence of bias; however, the multitude of factors present in these proceeding by which the judge's (judges') impartiality might reasonably be questioned are so strongly supportive of the appearance of impropriety they challenge Canons 3 and 4 and mandate self-disqualification lest appellate nullification joins jury nullification to avoid the effectiveness of our duly enacted laws.
Op. at p. 15.
It is important to note that Appellant Dupre, like Judge Nader, has never contended that
Judge Batchelder literally `sold' his vote. However, when examining whether a tribunal appears
12 unbiased and impartial, the question is not whether criminal behavior has actually occurred.
See, Nixon v. Shrink Missouri Gov't PAC (2000), 528 U.S. 377, 389 ("In speaking of improper
influence and opportunities for abuse in addition to quid pro quo arrangements, we recognized a
concern not confined to bribery of public officials, but extending to the broader threat from
politicians too compliant with the wishes of large contributors.")
Here, an examination of the original opinion also reveals that Judge Batchelder was
something other than neutral. As set forth in Appellant Dupre's initial memorandum in support
of jurisdiction and motion for reconsideration filed before this Court, Judge Batchelder used
incendiary language when referring to the Appellants, their counsel, and the trial court. In
addition, he abandoned Ohio precedent, adopted law from foreign jurisdictions, and weighed the
evidence that had been submitted to the jury. None of these actions reflect the qualities expected
of an impartial judge who carefully applied the law to the facts in an appeal of the largest verdict
in Summit County history. The content and reasoning contained within the original decision are legitimate areas of inquiry in deciding whether the appearance of impropriety warrants the vacation of a judgment. See, Liljeberg v. Health Serv. Acquis. Corp. (1988), 486 U.S. 847, 868
("If we focus on faimess to the particular litigants, a careful study of Judge Rubin's analysis of the merits of the underlying litigation suggests that there is a greater risk of unfaimess in upholding the judgment... than there is of allowing a new judge to take a fresh look at the issues).
13 IV. CONCLUSION
This Court should exercise its sound discretion and accept jurisdiction of this appeal, and
reverse the original decision of the Ninth District Court of Appeals. In the altemative, this Court
should reverse the appointed Panel's decision that it did not have jurisdiction to hear the case and remand this matter with the instruction that Panel reach the merits of Appellant's motions.
Respectfully submitted,
Robert D. Kehoe C#0017466) J. Brian Kenney (#0073994) KEHOE & ASSOCIATES, LLC 900 Baker Building 1940 East Sixth Street Cleveland, Ohio 44114 216-621-1500 - 216-621-1551 (fax) Attomeys for Appellee William Dupre
14 Certificate of Service
I hereby certify that a copy of the foregoing was sent by regular U.S. mail to the following on this 19th day of December, 2007:
Richard I. Werder, Jr. QUINN EMANUEL URQUHART OLIVER & HEDGES LLP 51 Madison Avenue 22"d Floor New York, NY 10010
COUNSEL FOR APPELLEE TELXON CORPORATION
John C. Fairweather BROUSE MCDOWELL 388 South Main Street; Suite 500 Akron, Ohio 44311
COUNSEL FOR APPELLEE SYMBOL TECHNOLOGIES, INC.
Gregory H. Melick THE MELICK LAW FIRM, LLC 2404 Kenilworth Road Cleveland Heights, Ohio 44106
COUNSEL FOR APPELLANT SMART MEDIA OF DELAWARE, INC.
Robert D. Kehoe, Counsel of Record
COUNSEL FOR APPELLANT, WILLIAM J. DUPRE
15 STATE OF OHIO IN THE COURT OF APPEALS ^^ ^r...:.;,^^:r^N NINTH JUDICIAL DISTRICT OUNTY OF SUMMIT
^TELXON CORPORATION, etial,r I ^ jivT^ C.A. Nos. 22098 & 22099 S I Appellants C^^^?;: o^ CoUF^
V.
SMART MEDIA OF DELAWARE, INC., et al. JOURNAL ENTRY Appellees
Appellees Smart Media and Dupre have moved this court, pursuant to Civ.R. 60(B), to vacate the decision and journal entry, which was journalized on September 25, 2005 and which reversed a trial court judgment and damage award. The Appellants have responded in opposition. Appellee Dupre also has moved for leave to file an untimely motion for
econsideration. Upon consideration, for the reasons set forth in the attached opinion, both knotions are denied.
Judge Journal Entry, C.A. Nos. 22098 and 22099 [21
A brief recitation of the procedural facts is in order. During 1998, Appellant Telxon iled suit against Appellee Smart Media, seeking a declaration that there was no binding agreement between the two companies. Smart Media joined other defendants, including
Appellee Dupre, and all of the defendants filed counterclaims. They alleged various counterclaims, including breach of contract, fraud, and interference with a business elationship. Appellant Symbol Technologies was later joined as a defendant to the counter- claims.
The case eventually proceeded to a jury trial, which culminated in a judgment against
elxon and Symbol and in favor of the counterclaimants, with a total damage award in excess of $218 million. Telxon and Symbol appealed and this court reversed the judgment on the counterclaims. This court held that the judgment should be reversed because, among other reasons, there was not enough evidence to support any of the counterclaims and
elxon and Symbol should have been granted directed verdicts. Smart Media and Dupre appealed to the Ohio Supreme Court, but the Court declined to accept jurisdiction.
On January 9, 2007, Appellee Smart Media filed a motion with this court to vacate he judgment pursuant to Civ.R. 60(B). Appellee Dupre later joined in that motion. The
otions of each Appellee urged that this court vacate its decision in this case due to the
"unacceptable appearance of impropriety and possible bias." They alleged that, mbeknownst to either of the Appellees at the time, Robert Meyerson, who had been the
CEO of Telxon and had a financial stake in the outcome of this case, had strong political ties o the Summit County Republican Party and directly to Judge William G. Batchelder, the
uthor of the opinion. Appellees asserted that over a period of years, Meyerson had made ubstantial financial contributions to Judge Batchelder and his political party both locally Journal Entry, C.A. Nos. 22098 and 22099 [3] and statewide. In addition to Judge Batchelder's financial ties to Meyerson, Appellees alleged other surrounding factors that tended to create an appearance of impropriety, which included: (1) the opinion itself, in which only one of the other two panel judges concurred, which was unnecessarily lengthy and written in a tone that does not appear to be unbiased; and (2) the fact that Judge Batchelder left the bench shortly after the decision to pursue an elected position in the legislative branch of government. Given the additional facts that the trial court's damage judgment for Smart Media and Dupre had been historically large and that this court reversed the judgment and entered final judgment for the appellants, Smart
Media and Dupre contend that the totality of the circumstances of this case conveys a strong appearance of impropriety.
All of the sitting judges of the Ninth District Court of Appeals have recused themselves and the matter is now before this panel of visiting judges pursuant to assignment by the Chief Justice of the Ohio Supreme Court.
THE SPECIFIC ALLEGATIONS
According to the allegations of the Appellees, Robert F. Meyerson, a one-time
Chairman and CEO of Telxon, held an ownership interest through himself and/or his
`affiliates" in the amount of 7.6 million dollars as of mid-January 2000. Appellees allege
hat Meyerson was not only a key witness in the case but also Judge Batchelder's largest and
ongest-standing political contributor. At a time when Meyerson is said to have known
bout the pending litigation-as early as the spring of 2000-Meyerson donated $50,000 to
he Republican Party of Summit County. A battery of additional donations in the fall of
2000 is listed in the respective chronological amounts of $50,000, $110,000, $100,000, and
625,000, so that, all in all, Meyerson donated $335,000 to the county party during calendar Journal Entry, C.A. Nos. 22098 and 22099 [4]
ear 2000. (In October 2000 the party itself contributed $20,000 to Judge Batchelder's judicial campaign.) During the year 2001, Meyerson donated an additional $202,500 to the county party. And in 2003, Meyerson donated $55,000 to the county party, earmarking
$50,000 for the "Judicial Fund." Also, for his 1996 campaign for the Ohio House of
epresentatives-prior to his elevation to the bench-Judge Batchelder allegedly received
$15,000 from Meyerson, visited Meyerson at Meyerson's home to solicit the contribution and later entertained Meyerson at his (Batchelder's) home following receipt of the political contribution. That sum-$15,000-is described as nearly one-third of the total funds raised for Batchelder's Ohio House campaign for that election cycle.
PROCEDURAL ISSUES AND MECHANISMS
We must initially address whether Telxon and Dupre have a procedural avenue to seek their requested relief. Telxon moved to vacate judgment pursuant to Civ.R. 60(B) and
Dupre joined in. that motion. Although Civ.R. 60(B) may be used in original actions in the courts of appeals, the Ohio Supreme Court has held that "Civ.R. 60(B) is clearly inapplicable to review the court's judgment on appeal." Martin v. Roeder (1996), 75 Ohio
St.3d 603.
The Supreme Court has held for many years that the civil rules generally do not apply to appeals: "Under ordinary circumstances, neither the Ohio Rules of Criminal
rocedure nor the Ohio Rules of Civil Procedure are applicable to cases on appeal; the
ppellate Rules `govern procedure in appeals to courts of appeals from the trial courts of ecord in Ohio."' State v. McGettrick (1987), 31 Ohio St.3d 138, 141, fn. 5, citing App.R. 1,
rim.R. 1(C)(1), and Civ.R. 1(C)(1). Journal Entry, C.A. Nos. 22098 and 22099 [5l App.R. 1(A) provides that the appellate rules govern procedure in appeals to the courts of appeals. Civ.R. 1(C) further provides that the civil rules do not apply upon appeal
"to the extent by their nature they would be clearly inapplicable." Because App.R. 26
rovides for an application for reconsideration from an appellate decision, the Martin court concluded that it provided the exclusive remedy for the losing party on appeal and that
Civ.R. 60(B) was inapplicable. Id.
This appellate panel cannot ignore the clear precedent of the Ohio Stipreme Court.
We have no authority to address the merits of Telxon and Dupre's motion for relief from
'udgment pursuant to Civ.R. 60(B). The motion for relief from judgment is overruled accordingly.
Appellee Dupre has also requested leave to file an untimely application for
econsideration of this court's September 25, 2005 judgment. The justification for granting leave, and for considering reconsideration on its merits, is the belief that extraordinary circumstances have been alleged-thus permitting the application for an untimely motion
nder Appellate Rule 14(B). See, e.g., Carroll v. Feiel (1981), 1 Ohio App. 3d 145.
However, even if this court were to consider an Appellate Rule 26(A) reconsideration
n its merits, the standard for the ultimate ruling is different from an ab initio examination
f the appeal on the merits. The test is whether the application raises an obvious error in the
ourt's original decision or raises an issue that was either not considered at all or not ftilly
onsidered in the original opinion. State v. Black (1991), 78 Ohio App.3d 130, 132;
Columbus v. Horlge (1987), 37 Ohio App.3d 68, 68. An application for reconsideration is
ot an opportunity to reargue the merits of a party's case; rather, the party moving for
•econsideration bears the burden of pointing to the alleged deficiencies in the appellate Joumal Entry, C.A. Nos. 22098 and 22099 [6]
ourt's earlier decision. See State v. Vrabel (Oct. 6, 2000), 7th Dist. No. 95 CA 221. These
imitations on the breadth of such reconsideration may well be the reason why appellee
elxon did not even join in the request for leave. Furthermore, we do not have the authority
o disqualify a judge for an alleged violation of an appearance standard. That authority rests
ith the Chief Justice under the Ohio Constitution. See Section 5(C), Article IV, Ohio
Constitution.
But, even if an untimely application for reconsideration were procedurally available,
he mere granting of leave to file an untimely motion would not, in itself, set aside the existing judgment. Although Appellee Dupre has maintained that extraordinary circumstances exist to justify granting leave to file an untimely application, he has failed to allege that he could demonstrate any legal deficiency in the appellate judgment if leave were granted. Accordingly, the request to file an untimely application for reconsideration is denied.
NADER, J. DISSENTS, SAYING:
The Supreme Court of Ohio has identified the purpose of Civ.R.60(B) as "affording
elief in the interest of justice." Moore v. Emmanuel Family Training Center, Inc. (1985),
18 Ohio St.3d 64, 67, fn.l. The Court has also declared, on multiple occasions that "Civ.R.
0(B) is a remedial nile that is to be liberally construed with a view for effecting a just esult." State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. Of Elections
1993), 67 Ohio St.3d 134, 136; see, also, Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio
t.3d 17, 21; Blasco v. Mislik (1982), 69 Ohio St.2d 684, 685. The basic authorization for
sing the rule is found in its first sentence: "On motion and upon such terms as are just, the
ourt may relieve a party or his legal representative from a final judgment, order or Joutnal Entry, C.A. Nos. 22098 and 22099 [71 roceeding***." (Emphasis added).Civ.R. 60(B). For the reasons that follow, I believe the
nderlying motion is properly before this court and the terms of the motion demonstrate
elief is necessary for a fair and equitable resolution of the underlying matter. In short, I
ould hold the motion should be granted to avoid the appearance of impropriety.
Initially, I acknowledge that the rules of civil procedure generally have no application to procedure in courts of appeals. "The Rules of Appellate procedure govern appeals from trial courts of record to courts of appeals in Ohio." Martin v. Roeder, 75 Ohio
St.3d 603, 1996-Ohio-451. Not coincidentally, Telxon points out that Martin stands for the proposition that Civ.R. 60(B) is clearly inapplicable to review a final judgment of the court of appeals. Id. Telxon's assertion is generally accurate; however, the holding in Martin cannot be read in a vacuum. A review of the basic facts and circumstances of Martin, in conjunction with a careful application of established rules of interpretation, demonstrates its ruling is not as sweeping as Telxon proposes.
In Martin, the appellant, a pro se inmate, filed a complaint in the Marion County
Court of Common Pleas against the appellee, Marion Correctional Institution, alleging violations under Section 1983. Summary judgrnent was rendered in appellee's favor. The
Third District Court of Appeals affirmed the holding.
Later, the appellant filed a motion for relief from the appellate court's judgment pursuant to Civ.R. 60 (B). The Court of Appeals overruled the appellant's motion holding that Civ.R. 60 (B) was inapplicable to appellate proceedings.
In affirming the Third District's detertnination, the Supreme Court held, per curiam, that Civ.R. 60 (B) is outside the scope of appellate proceedings. The Court pointed out that the niles of appellate procedure, in particular a motion for reconsideration pursuant to 7ournal Entry, C.A. Nos. 22098 and 22099 [81
I^pp.R. 26(A), are the only recourse from a judgment rendered by an appellate court on
appeal.
S.Ct.R.Rep.Op. 1(B)(1) provides that, "[t]he law stated in a Supreme Court opinion is
contained within its syllabus (if one is provided), and its text, including its footnotes."
Martin was an opinion rendered per curiam, i.e. "by a majority of the court(,)"
S.Ct.R.Rep.Op. l(B)(3), but, contains no syllabus. Accordingly, the text of Martin sets
forth the Supreme Court's specific holding.
Upon careful review of the text, the holding in Martin is narrow, limited to facts
where an appellant, pursuant to Civ.R. 60 (B), attempts to seek relief from the judgment of
an appellate court deciding an appeal from the judgment of a trial court. The factual and
legal scenario adjudicated by the court in Martin is therefore fundamentally distinguishable
from the issue presented in the matter sub judice.
Here, it is clear that we are considering a motion which does not address the merits of
the appellate court's judgment relating to the direct appeal but, to the impropriety of a judge
(or judges) sitting on the appeal. The issues animating appellees' motion emanate from
facts, ualrelated to the appeal but directed to disqualification of a judge, discovered
subsequently to all substantive or procedural matters addressed by the trial court and,
obviously, not included in the record; the direct appeal in this matter was heard and
concluded. The issues raised in appellees' motion are not part of the appeal from the trial
Ibourt and not exclusively subject to appellate rules.
The motion under consideration does not address the trial court's judgment on appeal
r the appellate judgment on that appeal; nor does it ask the Supreme Court to disqualify the
udges per R.C. 2701.03, an action exclusively within the authority of the Chief Justice. Joumal Entry, C.A. Nos. 22098 and 22099 191 his motion challenges the Ninth District's ruling on constitutional and ethical grounds as an "error or omission" of the Court of Appeals in violation of Canons 3 and 4 of the Code of
Judicial Conduct:
Canon 3(E)(1) provides "A judge shall disqualify himself'*** in a proceeding in which the judge's impartiality might reasonably be questioned. ***" and, Canon 4: "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities."
The Fourteenth Amendment to the Constitution of the United States affords all residents due process to "give them equal protection of the laws and the right to have their case fairly tried in a public tribunal." In re Oliver (1948), 333 U.S. 257. In In re Murchison
(1955), 349 U.S.133, the United States Supreme Court, in an opinion by Justice Black, stated:
"A fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that `every procedure which would offer a possible temptation to the average man as a judge...not to hold the balance, nice, clear and true between the State and the accused denies the latter due process of law."' Id. at 136, quoting Tiimey v. Ohio, 273 U. S.510, 532.
Such a stringent nile may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending p arties. But, to perform its high function in the best way `justice must satisfy the
ppearance of justice,' Offutt v. United States (1954), 348 U.S. 11, 14." In re Murchison,
upra. Joumal Entry, C.A. Nos. 22098 and 22099 [10]
Rule 1 of the Local Rules of the Ninth Appellate District sets forth "***on appeal
hen the Ohio Rules of Appellate Procedure or these local rules cannot be applied, the Ohio
Rules of Civil Procedure will apply, unless they are clearly inapplicable." eff. 7-1-98. With this in mind, the Supreme Court of Ohio has observed "[a] judge's participation in a case which gives rise to the appearance of impropriety and possible bias could constitute grounds for relief from judgment under Civ.R. 60 (B)(5)," Volodkevich v. Volodkevich (1988), 35
Ohio St. 3d.152, 154.
Civ.R. 60 (B) reads in relevant part: "On motion and upon such terins as are just, the court may relieve a party or his legal representative from a final judgment, order or
roceeding for the following reasons***
"(5) any other reason, justifying relief from the judgment."
In State ex rel. Gyurcsik v. Angelotta, (1977) 50 Ohio St.2d 345, 346, the Ohio
Supreme Court, in a per curiam opinion, pointed out that Civ.R.60(B)(5)" *** ."is characterized *** as reflecting the inherent power of the court to relieve a person from the unjust operation of a judgment" and "[i]t is generally held that court errors and omissions are reasons justifying relief under the `other reason' clause." Id. at 346-347.
In Klapprott v. United States, (1949) 335 U.S. 601, 614, modified, 336 U.S. 942,
Justice Black pointed out that Civ.R.60(B)(5) " vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Joumat Entry, C.A. Nos. 22098 and 22099 [11]
In the motion before this court, appellees detailed the following undenied allegations supported by documentary exhibits:
(1) Robert Meyerson (a) was Chairman and CEO of Telxon, located in Fairlawn, Ohio; (b) is a substantial shareholder in Symbol; and, (c) is an important witness in the trial.
In 1996, the Meyerson family contributed a total of $15,000.00 to Judge Batchelder in his campaign for the Ohio House of Representatives, 30% of his total post-primary contributions that year.
(2) During the pendency of the underlying case (December of 1998 through
September 21, 2005), the Meyersons contributed nearly $1,000,000.00 to the Summit
County Republican Party, including its Judicial Fund.
(3) In 2000, the year Judge Batchelder was seeking election to this court, the
Meyersons wrote $460,000.00 dollars in checks to the Summit County Republican Party, at one fund raiser, benefitting both its General Fund and its Judicial Fund. Further, in 2000,
r. Meyerson, with his wife, were the 12`h highest contributors to state Republican Party organizations nationally. The Meyersons had personally contributed $290,000.00 to the
Ohio and Florida Republican Parties.
(4) $25,000.00 of the Meyersons' total contributions to the Summit County Judicial
und, in 2004, was given at the annual Summit County Republican fund raiser, within
eeks after the appellate oral arguments in the underlying matter.
(5) The Meyersons have historically provided significant campaign contributions to
any elected political officials including former Governor Taft, who first appointed Judge Journal Entry, C.A. Nos. 22098 and 22099 [12]
atchelder to the Ninth Appellate District, and President Bush, who makes federal judicial appointments.
The alleged "error or omission" raised in appellees' motion is Judge Batchelder's failure to comply with Canon 3 and Canon 4 of the Code of Judicial Conduct. "[C]anons and accompanying text `establish mandatory standards unless otherwise indicated."'
Volodkevich, supra, at 154, quoting the preface to the Code of Judicial Conduct. Although this motion only includes the writing judge, it also applies to the entire panel. The "Code" is binding, the facts compulsory, and the Canons mandatory. At the very minimttm, disclosure to the parties of Meyerson's impressive political contributions and their potential for the appearance of impropriety was an absolute ethical mandate within the principles of
Canons 3 and 4.
"The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is *** an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality." In re Disgualification of Lewis, 105 Ohio St.3d 1239, 2004-Ohio-
7359, ¶8, citing Canon 3 (E) (1) of the Code of Judicial Conduct.
The previously undiscovered facts call into question the presumptive neutrality enjoyed by an impartial judge. Accordingly, the instant motion invokes the original jurisdiction of this court per Article IV, Section 3(B)(1)(f) of the Ohio Constittition, which provides:
"The courts of appeals shall have original jurisdiction* **(I)n any cause on review as nay be necessary to its complete determination." Journal Entry, C.A. Nos. 22098 and 22099 [13]
Appellees have sought this court's review of an issue originating in this court; an
issue of which justice demands consideration for purposes of a "complete determination."
Considering the allegations set forth in their motion, I would hold appellees have
demonstrated a reasonable appearance of impropriety to the extent the allegations cast doubt
pon the impartiality of the judgment rendered by this court in its September 21, 2005 decision. Given the peculiar and extraordinary facts alleged in the motion, our careful attention to appellees' allegations is necessary for a complete and equitable determination of the case. Various opinions by the Chief Justice of the Ohio Supreme Court support such a conclusion.
In In re Disqzcalificatian of Celebrezze, 105 Ohio St.3d 1241, 2004-Ohio-7360, Chief
Justice Moyer disqualified all judges in Cuyahoga County from sitting on a matter where the defendant, in a divorce case, was a county officeholder with "significant personal and
rofessional connections to many judges in the county." Id. at 1242. The Chief Justice acknowledged that Judge Celebrezze testified, via affidavit, that he was prepared to address
he matter fairly and impartially. Notwithstanding Judge Celebrezze's esteemed testimony,
he Chief Justice determined:
"Judge Celebrezze and the other judges of Cuyahoga County should be disqualified from participation in the case. Though none of Judge Celebrezze's words or actions suggest that he is biased or prejudiced, this is a case in which his removal is necessary `to avoid even an appearance of bias, prejudice, or impropriety, and to ensure the parties, their counsel, and the public the unquestioned neutrality of an impartial judge.' In re Disqualification ofFloycl, 101 Ohio St.3d 1215, 2003-Ohio-7354, at ¶10. As this court first said more than seven decades ago, `it is of vital importance that the litigant believe that he will have a fair trial.' State ex rel. Tainaer v. Marshall ( 1931), 123 Ohio St. 586, 587. The participation in this case by any Cuyahoga judge might reasonably cause the parties and the public to question the fairness of the proceedings." In re Disqualification of Celebreeze, supra, at ¶4. Journal Entry, C.A. Nos. 22098 and 22099 [14]
As a result of the concerns for the appearance of impropriety prohibited by Canon 4,
he Chief Justice resolved to appoint a visiting judge from outside Cuyahoga County to hear
e matter.
Moreover, in a similar matter, the Chief Justice again underscored the importance of
avoiding even the appearance of impropriety and the neutrality of the judiciary: "Those
same concerns [animating the decision in In re Disqualifzcation of Celebreeze] underlie my
decision in this case. No one has suggested that Judge Corrigan has said or done anything
reflecting bias or prejudice for or against any of the parties to this case. Nonetheless, lplaintiff Hagan is a county commissioner who necessarily exercises considerable authority
over the budget of the common pleas court in Cuyahoga County. The public could
reasonably question whether any judge now serving on the court of common pleas in
Cuyahoga County would be able to render a decision based solely on the relevant facts and
the law applicable to those facts." In re Disgualifcation of Corrigan, 110 Ohio St.3d 1217,
2005-Ohio-7153, at ¶6.
One can debate both sides of the proper use of the Civil Rules by distinguishing cases and the uses of Civ.R. 60 (B)(5). However, Civ.R. 60(B)(5) is remedial in nature and
therefore should be used to achieve equitable and just results. As the underlying vehicle is
an original motion, this court is empowered to use this remedial rule to assure justice.
hailing to do so merely supports a simplistic and strained rigidity in the employment of the
civil rules towards the end of validating a judgment from a judge and panel who clearly and
without hesitation should have complied with the mandatory dictates of Canon 3 and Canon Joumal Entry, C.A. Nos. 22098 and 22099 [15]
and disqualified themselves, sua sponte, as the entire court subsequently did, due to the
overwhelming appearance of impropriety that could be drawn by a reasonable person.
A $212,000,000.00 plus judgment erased on appeal by a panel whose local political
party received approximately $1,000,000.00 in contributions from a very financially
interested individual since the inception of the case, creates a classic scenario giving rise to
every nuance of political influence in our courts which calls for self-disqualification.
Meyerson and his associated entities contributed vast amounts of money for years to persons
directly associated with this action and every local, state, and national office holder with
authority and position to affect judicial careers of those serving in the Ninth District. This
must suggest to a reasonable and objective observer a greater test of the integrity of the
court than potential favoritism to another county employee. This most assuredly falls within the coininendable purpose of Chief Justice Moyer's disqualification of every judge in
Cuyahoga County to prevent the appearance of impropriety and restore confidence in an
independent judiciary.
One can only surlnise another's ultimate intentions, for that knowledge is privy to that person alone. No suggestion or conclusion is proffered herein about the impropriety of
any of the parties involved. To the contrary, the presumption of their propriety has not been compromised by actual evidence of bias; however, the multitude of factors present in this proceeding by which the judge's (judges') impartiality might reasonably be questioned are so strongly supportive of the appearance of impropriety they challenge Canons 3 and 4 and mandate self-disqualification lest appellate nullification joins jury nullification to avoid the effectiveness of our duly enacted laws. Journal Entry, C.A. Nos. 22098 and 22099 [16]
Given the totality of the circumstances and unusual context of the underlying motion,
ecognition that the Supreme Court has not formally barred the use of a Civ.R 60(B) motion
nder these circumstances, and past rulings of the Chief Justice pertaining to disqualification of active and retired judges, I would hold appellees' motion to be well taken, set aside the judgment, and order a rehearing of the appeal. CO PY
TATE OF OHIO ) C01J.R.:1' 01' 11.`>f'1~„tiL,S IN THE COURT OF APPEALS )M1 JAP2 16 AH 7: 45 NINTH JUDICIAL DISTRICT ICOUNTY OF SUMMIT ) SUMMIT COUNTY CLERK OF COURTS TELXON CORP. C.A. Nos. 22098 22099 Appellant
V.
SMART MEDIA OF DELAWARE, INC., et al.
Appellees
JOURNAL ENTRY
Appellee, Smart Media of Delaware, Inc., moved this Court to vacate its
udgment entered on September 21, 2005. The Judges on this Court have concluded
at it is necessary that they recuse themselves from participating in this case.
Our recusal is necessary "to avoid even an appearance of bias,.prejudice, or
mpropriety, and to ensure the parties, their counsel, and the public the unquestioned
eutrality of an impartial [panel of judges]." In re Disqualification of Floyd, 101 Ohio
t.3d 1215, 2003-Ohio-7354, ¶ 10. As the Supreme Court has stressed, "it is of vital
mportance that the litigant[s] believe that [they] will have a fair trial." State ex rel.
Turner v. Marshall (1931), 123 Ohio St. 586, 587; In re Disqualifacatton of Celebrezze,
105 Ohio St.3d 1241, 2004-Ohio-7360, ¶ 4. COPY I Journal Entry, C.A. Nos. 22098 and 22099 Page 2 of 2
The Judges have asked the Supreme Court of Ohio to appoint three visiting
'udges to hear this matter. All further proceedings, including rulings on any pending
otions, shall be handled by the panel of judges assigned by the Supreme Court of
hio. COPY g4e slxvrr.ettt.e ^Oaxrt .af (04tti
CERTIFSCATE OF ASSIGNMENT
The Honorable Thomas Patrick Curran a retired judge of the Eighth District Court of Appeals, is assigned effective January 17, 2007. to preside in the Ninth District Court of Appeals, to hear cases SUMMIT 22098, Telxon v. Smart Media of Delaware, Inc.; SUMMIT 22099, Telxon v. Smart Media of. Delaware, Inc. and to conclude any proceedings in which he participated.
ThomaEi J. Moyer Chief Justice
07JA0525 COPY g4.e $U;tunt.e ^Jaur# .af (04fia
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M1o N
CERmIF7CA.TE OF ASSIGNMENT
The Honorable Robert Alexander Nader a retired judge of the Eleventh District Court of Appeals, is assigned effective January 17, 2007 to preside in the Ninth District Court of Appeals, to hear cases SUMMIT 22098, Telxon v. Smart Media of Delaware, Inc.; SUMMIT 22099, Telxon v. Smart Media of Delaware, Inc. and to conclude any proceedings in which he participated.
Thom" J. Moyer Chief Justice
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CERTIFTCATR OF ASSIGNMENT
The Honorable William Ridenour Baird a retired judge of the Ninth District Court of Appeals, is assigned effective January 17, 2007 to preside in the Ninth District Court of Appeals, to hear cases SUMMIT 22098, Telxon v. Smart Media of Delaware, Inc.; SUMMIT 22099, Telxon v. Smart Media of Delaware, Inc. and to conclude any proceedings in which he participated.
Thomas' J. Moyer Chief Justice
07JA0526