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Jack Gibson-El ) Supreme Court of Ohio Case No. 2014-1559 Relator, ) ) Original Action in Quo Warranto, vs. ) Mandamus, and Prohibition ) Franklin County Municipal Court, et al., ) ) Respondent )

Respondents' Ohio State Highway Patrol and Trooper Joshua Barry Motion to Dismiss and Memorandum In Support

Viike DeWine (0009181) Attorney General of Ohio

Jack Gibson-El Federico O. Barrera III (0090739) 1696 Bostwick Road Assistant Attorney General Columbus, Ohio Executive Agencies Section Relator, Pro Se 30 East Broad Street, 16th Floor Columbus, Ohio 43215-3428 P: (614) 466-2833 F: (614) 728-9470 [email protected] Counsel for Respondents Ohio State Highway Patrol and Trooper Joshua Barry

Andrew D.M. Miller (0074515) Assistant City Attorney City of Columbus, Department of Law Richard C. Pfeiffer, Jr., City Attorney 77 North Front Street Columbus, Ohio 43215 P: (614) 646-6947F: (614) 645-6949 Counsel for Respondents (1) Franklin _ y ' r ,^^r County Municipal Court; (2) FCMC TYaffic 4l ^/^^ d S/ 9 •f4 ^ ry/ J^i Violations Bureau; (3) FCMC Judge Mark t.J U ^l" IrL ^tvAl._._^^...«^i...+i.i^ %4 s.jfw^ _ °+ A. Hummer; FCMC Magistrate David A. Jump; and (5) Assistant City Attorney Issac J. Rinsky [email protected]

Franklin County Sheriff's Office & Sheriff s Deputy Ronald A. Pierce c/o Nick Soulas, First Asst. Prosecuting Attorney Franklin County Prosecutor's Office Civil Division 373 S. High Street, 13th Floor Columbus, Ohio 43215 P: (614) 525-3520 F: (614) 728-9470 nsoulas@franklincountyohi o. gov Respondents, Yet to Make an Appearance

2 MOTION TO DISMISS

Respondents Ohio State Highway Patrol and Trooper Joshua Barry move this Court, pursuant to S.Ct.Prac.R. 12.04(A)(1), S.Ct.Prac.R. 12.02(B), Civ.R. 12(B)(1), and Civ.R.

12(B)(6), to dismiss the Complaint filed by Relator Jack Gibson-El. This Motion is based on the accompanying memorandum in support.

Respectfully submitted,

Mike DeWine (0009181) Attorney General of Ohio

Fe erico Barrera III (0090739) Assistant Attorney General Executive Agencies Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215-3428 P: (614) 466-2833 F: (614) 728-9470 Rico. B arrera@ohioattorneygeneral. gov Counsel for Respondents Ohio State Highway Patrol and Trooper Joshua Barry

3 MEMORANDUM IN SUPPORT

1. Introduction

Relator Jack Gibson-El ("Gibson-El") filed a Complaint that fails to invoke this Court's

jurisdiction for several reasons. First, Gibson-El's Complaint is not supported by an affidavit

setting forth specific facts upon which the claim for relief is based, as required by S.Ct.Prac.R.

12.04(B). Second, his Complaint, which is in part an application for a writ of mandamus, is

improperly captioned pursuant to R.C. 2731.04. Third, Gibson-El seeks monetary damages

against Respondent Trooper Joshua Barry ("Trooper Barry") in his official capacity; such

complaints are barred by the Eleventh Amendment of the U.S. Constitution. Finally, Gibson-El

seeks to sue Trooper Joshua Barry in his personal capacity for an official act, which first requires

a determination of immunity by the Court of Claims. All four issues are separate jurisdictional

defects, and each should result in the dismissal of Gibson-El's Complaint.

Even if this Court had subject-matter jurisdiction, Respondent Jack Gibson-El ("Gibson-

El") fails to state a claim upon which relief can be granted in his applications for writs of quo

warranto, mandamus, or prohibition. Accordingly, Gibson-El's complaint should be dismissed.

II. Statement of Facts

Trooper Barry cited Gibson-El (also known as Jack H. Gibson, II) on April 9, 2014 for failing to properly register his vehicle, and failing to wear a seatbelt, See State of Ohio v. Gibson,

Franklin M.C. No. 2014-TR-D-130493 (May 6, 2014). After initially refusing to enter a plea,

Gibson-El eventually pleaded guilty to the two charges, and paid the corresponding fine. Id.

Rather than fighting the citation and filing a direct appeal, Gibson-El filed a complaint with this

Court on September 10, 2014. See Complaint.

4 Gibson-El claims to be an, "Aboriginal Indigenous Moorish-American; possessing Free- hold by Inheritance and Primogeniture Status; standing Squarely Affirmed, aligned and bound to the Zodiac Constitution." See Complaint, p. 2. Through this status, he essentially claims to be immune from the law of Ohio. Because Trooper Barry stopped him, and ultimately issued a citation under Ohio law, Gibson-El claims the Patrol, through Trooper Barry, "discriminated against and denied his rights to religious and cultural freedom as secured by The Treaty of Peace and Friendship 1836 (A.D.), the United States Constitution, and The Constitution of The State of

Ohio." See Complaint, p. 7.

III. Law and Argument

A. Gibson-El's Complaint fails to invoke the jurisdiction of this Court.

1. Gibson-El's Complaint is not supported by an affidavit setting forth specific facts upon which the claim for relief is based, in violation of S. Ct.Prac.R. .12.02(B).

Gibson-El's Complaint is an application for writs of quo warranto, mandamus, and prohibition. See Complaint, p. 1. Presumably, the Complaint seeks to invoke this Court's original jurisdiction over such writs. The requirements for instituting an original action are set forth by S.Ct.Prac.R. 12.02. Specifically, S.Ct.Prac.R. 12.02(B) sets the following requirements:

(1) All complaints shall contain a specific statement of facts upon which the claim for relief is based, shall be supported bv an affidavit specifying the details of the claim, and may be accompanied by a memorandum in support of the writ.

(2) The affidavit required by this division shall be made on personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that the affiant is competent to testify to all matters stated in the affidavit.

(3) All relief sought, including the issuance of an alternative writ, shall be set forth in the complaint.

5 (Emphasis added.). This Court routinely dismisses original actions that fail to meet the

requirements of S.Ct.Prac.R. 12.02(B). See State ex rel. Hackworth v. Hughes, 97 Ohio St.3d.

110, 113, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 24 ("We have routinely dismissed original

actions, other than habeas corpus, that were not supported by an affidavit expressly stating that

the facts in the complaint were based on the affiant's personal knowledge."); see also State ex rel.

Evans v. Blackivell, 111 Ohio St.3d 437, 442-43, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 31.

Gibson-El's Complaint is not supported by an affidavit that meets the requirements of

Rule 12.02(B). See Complaint. The only affidavit provided is labeled by the clerk as "Affidavit

of Indigence," and does not supply any information relevant to Gibson-El's claim. Accordingly,

the Court should dismiss Gibson-El's Complaint.

2. Gibson-Ed's Complaint is improperly captioned pursuant to R.C. 2731.04.

Gibson-El's Complaint, in part, is an application for a writ of mandamus. See Complaint.

As such, it is governed by R.C. Chapter 2731, the statutory rules for filing a writ of mandamus.

Specifically, R.C. 2731.04 states, "[an] application for the writ of mandamus must be by petition,

in the name of the state on the relation of the person applying, and verified by qffidavit."

(Emphasis added.). The failure to properly caption a mandamus action is sufficient grounds for

denying the writ and dismissing the petition. See Gannon v. Gallagher, 145 Ohio St. 170, 171,

60 N.E.2d 666, 667 (1945); see also Blcinkenship v. Blackwell, 103 Ohio St.3d 567, 574, N.E.2d

382, 2004-Ohio-5596, ¶ 34. Gibson-El fails to caption his Complaint in accordance with R.C.

2731.04; he simply lists a number of people and entities, most of which are various political

subdivisions of the State. By failing to properly caption his Complaint, Gibson-El has not met one of the most basic requirements for a writ of mandamus, and his Complaint should be dismissed.

6 3. Gibson-El seeks monetary damages against Trooper Barry in his o tcial capacity, which is barred by the Eleventh Amendment of the U.S. Constitution.

Gibson-El seeks $150,000 in damages against Trooper Barry in his official capacity. See

Complaint, p. 12 at ¶15. Because the Eleventh Amendment protects the state from suit, Trooper

Barry cannot be sued in his official capacity. Accordingly, Gibson-El's Complaint against

Trooper Barry should be dismissed.

There is no dispute that Trooper Barry is an employee of the Ohio State Highway Patrol, a state agency. See Complaint, p. 12 at ¶ 15. Case law is clear that "[s]uits against state officials in their official capacity therefore should be treated as suits against the State." Hafer v. Melo,

502 U.S. 21, 25 (1991). To the extent that Gibson-El is seeking monetary damages against a state employee acting in his official capacity, such a claim is improper under the Eleventh

Amendment of the Constitution which provides the states immunity from suit. See Thiokol

Corp. v. Department of'Treasu,ry, Revenue Div., 987 F.2d 376, 381 (6th Cir. Mich. 1993) ("The

[Eleventh] amendment also bars suits for monetary relief against state officials sued in their official capacity."). As such, Gibson-El's Complaint should be dismissed pursuant to Civ.R.

12(B)(1).

4. Trooper Barry cannot be sued in his personal capacity for acts taken in the performance of his duties.

As a state employee, Trooper Barry is immune against civil actions arising out of the performance of his duties, pursuant to R.C. 9.86. Trooper Barry is only subject to liability if he acted, "manifestly outside the scope of his employment or official responsibilities," or if he,

"acted with malicious purpose, in bad faith, or in a wanton or reckless manner." See R.C. 9.86.

The Court of Claims retains exclusive jurisdiction over determinations regarding a state employee's immunity under R.C. 9.86. See R.C. 2743.02(F).

7 Not only has Gibson-El failed to allege that Trooper Barry's actions disqualify him from

immunity, the Court of Claims is the only court with jurisdiction to make that determination. Id.

Thus, Gibson-El's Complaint should be dismissed pursuant to Civ.R, 12(B)(6) for failure to state

a claim, as well as Civ.R. 12(B)(1) for lack of subject-matter jurisdiction.

B. Gibson-El's complaint fails to state a claim for writs of quo warranto, mandamus, and prohibition.

1. Gibson-El is not seeking public office, and does not claim the Patrol or Trooper Barry unlawfully holds public office; thus, the Writ of Quo Warranto is inappplicable.

The writ of quo warranto, as set forth by R.C. Chapter 2733, "is used chiefly to question

the authority of claimants asserting right and title to public offices or corporate franchises."

State ex rel, Cain v. Kay, 38 Ohio St.2d 15, 16-17, 309 N.E.2d 860, 862 (1974). To succeed, a

claimant must, "not only [prove] that he is entitled to the office and that the office is unlawfully

held by the respondent in the action, but also that the office is a`public office' for purposes of

quo warranto." Id. Gibson-El does not hold public office, nor does he claim he is entitled to hold public office. Gibson-El does not claim that the Patrol or Trooper Barry unlawfully holds public office. Gibson-El's Complaint does not make any claim in quo warranto, and does not plead the necessary facts to sustain such an action; thus, the writ of quo warranto is inapplicable and should be dismissed pursuant to Civ.R. 12(B)(6).

2. Gibson-El fails to state a claisn for a writ of mandamus.

Gibson-El does not have a clear legal right to the requested relief, the Patrol and Trooper

Barry have no legal duty to provide the requested relief, and Gibson-El had an adequate remedy at law - the direct appeal of the traffic citation. Gibson-El cannot meet a single requirement for a writ of mandamus, and this action should be dismissed.

8 To obtain a writ of mandamus, a respondent must show: (1) a clear legal right to the requested relief; (2) the relator had a clear legal duty to provide the requested relief; and (3) there is no adequate remedy at law. See State ex rel. Ervin v. Baf°ker, 136 Ohio St.3d 160, 161, 2013-

Ohio-3171, 991 N.E.2d 1146, 1148, ¶9; State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 56,

2012-Ohio-69, 960 N.E.2d 452, 454, ¶6.

Gibson-El has not shown a clear legal right to the requested relief It is difficult to comprehend the basis for his claim, which is rooted in the notion that, as a descendant of Moors, the law doesn't apply to him. See Complaint, p.7. Gibson-El has not supported this conclusion with any legal authority; rather, he vaguely cites to the, "Treaty of Peace and Friendship of 1836

A.D.9" Gibson-El incorrectly argues that this treaty somehow entitles him to a legal right to immunity from the law.

Similarly, this treaty does not impose a clear legal duty on the Patrol, through Trooper

Barry, to refrain from citing him for legitimate violations of the law. Trooper Barry acted correctly in citing Gibson-El for failing to properly register his vehicle and failing to wear a seatbelt - this is proven by Gibson-El's guilty plea in the corresponding case. See State of Ohio v. Gibson, Franklin M.C. No. 2014-TR-D-130493 (May 6, 2014). Gibson-El's alleged status as a descendent of Moors does not impose any duty on the Patrol or Trooper Barry.

Finally, Gibson-El had an adequate remedy at law if he disagreed with the citation issued by Trooper Barry: a trial at the municipal court and a direct appeal, if necessary. Instead,

Gibson-El pled guilty to the citation, and then paid the corresponding fine. Id. Although this

Court has original jurisdiction over applications for writs of mandamus, Gibson-El's best remedy would have been to fight the citation at the municipal court level where the underlying facts were at issue. Thus, Gibson-El had an adequate remedy at law; he just did not avail himself to it.

9 Accordingly, Gibson-El's application for a writ of mandamus should be dismissed pursuant to

Civ.R. 12(B)(6).

3. Since the Patrol and Trooper Barry are not tNibunals, Gibson El fails to state a claim for a writ ofprohibition.

The writ of prohibition is an extraordinary writ directed to an inferior tribunal and is

meant to, "[r]estrain inferior courts and tribunals from exceeding their jurisdiction." State ex rel.

Jones v. Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002, 1005 (1998) (quoting State ex rel.

Burtzlaff'v. Vickery, 121 Ohio St. 49, 50, 166 N.E. 894, 895 (1929)). To succeed, a Relator must

prove ( 1) the lower court is about to exercise judicial authority, (2) the exercise of this authority

is not authorized by law, and (3) the relator possesses no other adequate remedy in the ordinary

course of law if the writ of prohibition is denied. See Suster, 84 Ohio St.3d 70, 74, 701 N.E.2d

1002, 1005 (1998); see also State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 117, 2012-Ohio-54,

¶ 18.

The writ of prohibition is wholly inapplicable to the Patrol and Trooper Barry since neither is an "inferior tribunal." Id. The Patrol is a state agency, and Trooper Barry is an employee of that agency. The only conduct at issue was the issuance of a traffic citation by

Trooper Barry. Although a tribunal ultimately adjudicates the citation, neither the Patrol nor

Trooper Barry acted as a tribunal; thus, the writ of prohibition does not apply and should be dismissed pursuant to Civ.R. 12(B)(6).

IV. Conclusion

For the reasons sated above, Respondents Ohio State Highway Patrol and Trooper Joshua

Barry move this Court to dismiss Relator Jack Gibson-El's Complaint, pursuant to S.Ct.Prac.R.

12.04(A)(1), Civ.R. 12(B)(1), and Civ.R. 12(B)(6).

10 Respectfully submitted,

Mike DeWine (0009181) Attorney General of Ohio

Federico 6. arrera III (0090739) Assistant Attorney General Executive Agencies Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215-3428 P: (614) 466-2833 F: (614) 728-9470 Rico.Barreraa,ohioattorneygeneral. gov Counsel for Respondents Ohio State Highway Patrol and Trooper Joshua Barry

11 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Motion to Dismiss has been served upon the following via ordinary U.S. Mail, pursuant to Civ. R. 5, this 1st day of October, 2014:

Jack Gibson-El 1696 Bostwick Road Columbus, Ohio Relator, Pro Se

Andrew D.M. Miller (0074515) Assistant City Attorney City of Columbus, Department of Law Richard C. Pfeiffer, Jr., City Attorney 77 North Front Street Columbus, Ohio 43215 P: (614) 646-6947F: (614) 645-6949 Counsel for Respondents (1) Franklin County Municipal Court; (2) FCMC Traffic Violations Bureau; (3) FCMC Judge Mark A. Hummer; FCMC Magistrate David A. Jump; and (5) Assistant City Attorney Issac J. Rinsky [email protected]

Franklin County Sheriff s Office & Sheriff's Deputy Ronald A. Pierce c/o Nick Soulas, First Asst. Prosecuting Attorney Franklin County Prosecutor's Office Civil Division 373 S. High Street, 13th Floor Columbus, Ohio 43215 P: (614) 525-3520 F: (614) 728-9470 [email protected] Respondents, Yet to Make an Appearance

Federico . Barrera III (0090739)