On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District

Transcription

1 LEROY CREASEY, JR., Appellant, V. Cuyahoga County Veterans Service Commission, et al. IN THE SUPREME COURT OF OHIO On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT LEROY CREASEY, JR. U t45b 1919 East 55pt Cleveland, Ohio (216) William D. Mason Cuyahoga County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio Counselfor Appellee Cuyahoga County Veterans Service Commission Shannon O'Brien Assistant Attorney General Civil Rights Sectiori 30 East Broad Street, 15th Floor Columbus, Ohio Counsel for Appellee Ohio Civil Rights Commission

2 TABLE OF CONTENTS Paae EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUE^TION...1,2 STATEMENT OF THE CASE AND FACTS...:...3,4 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...4 Proposition of Law No.1: Due process of law supersedes legislative intent of Ohio's General Assembly. O.Const.Art Proposition of Law No.2: A pro se litigant is entitled to due process of law as Guaranteed by U.S. Const.Amend. 14; Ohio Const.Art CONCLUSION...:...5 PROOF OF SERVICE...6 AFFIDAVIT OF INDIGENCY...7 APPENDIX Appx. Page Opinion and Journal Entry of the Cuyahoga County Court of Appeals (Jul. 16, 2008)...1 Judgment Entry denying appellant's motion for reconsideration (Jul. 16, 2008)...5

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION This case presents two critical uses as related to due process of law in an administrative proceeding in Ohio: ( 1) whether appellant's rights to due process of law to defend against an alleged theft of county funds in the amount of $ in an administrative hearing of appcllee Cuyahoga County Veterans Service Commission given the fact appellant was given a notification of grievance procedure form by appellee's employee Mrs. Wine which stated grievant could appeal any adverse ruling by the commission (hereinafter CCVSC) by given written notice within the 15 day time limitation; and (2) whether the Oliio Civil Rights Commission acted fairly within the bounds of Ohio Constitutional Law. In this case, the court of appeals claimed appellant filed a discrimination charge with the Ohio Civil Rights Conunission (hereinafter OCRC), alleging that Cuyahoga County Veterans Service Commission (liereinafter CCVSC), discriminated against appellant on the basis of his race when harassed appellant and withheld assistance pending a drug assessment. On March 26, 2006, appellant filed an amended/supplemental complaint, alleging the additional discriminatory act of failing to notify appellant of various hearings, and repeating his original allegations. On May 11, 2006, OCRCissued a no probable cause finding, based on the conclusion that CCVSC is not a place of public accommodation, as appellant listed in his original charge. Opinion at page - I- I. - 1-

4 The court of appeals failed to address appellant in his amended/supplemental complaint was submitted to appellee OCRC on the basis that CCVSC is not a place of public accommodation and appellee OCRC knew this fact and still gave appellant a form not in conformity with the complaint charged by appellant. The decision of the court of appeals is not in conformity with the due process clause of U.S. Const.Amend. 14; and Const.Art The decision of the court of appeals threatens the very meaning of due process clause (the right to be heard and defend) in any designed by legislative intent and the Ohio Constitution. The court of appeals at page -3- relevant here is the following: As to appellant's first argument - the OCRC did not address the supplemental complaint filed March 26, we conclude that the trial court did not abuse its discretion regarding this issue becausc the OCRC did address his March 26, 2006 complaint in both its May 11 and October 26, 2006 determinations of probable cause. As to appellant's second argument - that OCRC did not notify him of various hearings - we conclude that the court did not abuse its discretion regarding this issue because appellant put forth no evidence from the record regarding the hearings or supporting his allegations that OCRC failed to notify him of such. In addition, appellant cites not legal authority regarding this argument. Appellant filed a motion for reconsideration with supporting brief relevant citations from this court. Furthermore, any omission (as the court of appeals claims) are not justified had the court of appeals did a plenary review their opinion would have been different. -2-

5 STATEMENT OF THE CASE AND FACTS Appellant filed for assistance from CCVSC which was given with restrictions. Appellant filed for further assistance which was granted upon certification that appellant was drug free. Appellant obtained_statement from the Veterans Hospital Brecksville, Ohio that appellant was drug free. Thereafter, appellee gave appellant limited assistance from dental work and then later accused appellant of fraud of obtaining funds in the amount of $ Appellant requested hearing on this charge which was denied and after employee Mrs. Wine gave appellant a form which essentially stated "you" have fifteen days to appeal any adverse decision by CCVSC. Appellant filed timely notice for hearing which was not answered by CCVSC and Mrs. Wine refused to intervene on behalf of appellant. After CCVSC refusal to assistant appellant a Vietnam veteran appellant filed a charge of discrimination with appellee OCRC on appellee's issued complaint form. On appellee's form there is Type of Harm: 1) Public Accommodation; 2) Credit and 3) Higher Education - Disability. Appellant marked Public Accommodation box. After review of case law appellant submitted to appellee OCRC Amended/Supplemental Complaint on the basis that CCVSC is not a place of `public accommodation' and this document is the basis of due process charge by appellant against OCRC. The following below should be considered by the Supreme Court. Appellant requested and was granted a reconsideration hearing by appellee OCRC in Columbus, Ohio. The neutral member was _not in. attendance due to pending surgery of his wife at a local hospital. 3-

6 Appellant filed a petition for judicial review. The trial court judgment stated that there was not an "unlawful, irrational, arbitrary, or capricious" action of OCRC. (Citation omitted). A timely appeal followed and the court of appeals affirmed the judgment of the lower court. Appellant filed a motion for reconsideration which too was denied July 16, This timely appeal follows. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: Due process of law supersedes legislative intent of Ohio's General Assembly. This court held in State ex re1. Ormet Corp. v. Indus. Comm., (1990), 561 N.E.2d 920, 922 that `the right to due process in an administrative proceeding is not limited to a simple right to have the hearing conform with the letter of applicable procedural regulations.'(other citations omitted). In this instant case appellant was given a form from employee Mrs. Wine explaining appellant's rights to a hearing before an Appeal Officer and appellant requested times for a hearing which was not adhered to by appellee. Proposition of Law No. 2: A pro se litigant's right to due process of law is required and enforced by U.S. Const.Amend. 14. The U.S. Supreme Court upheld the U.S. Court of Appeals Sixth Circuit opinion in Quinn v. Shirey, 293 F.3d 315, cert. den. 123 S:Ct. 538, 537 U.S "A person's reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the Fourteenth Amendment." In this case the court--- of appeals erred and indicates pro se litigants do not have right to due process of.law and have right to be heard in this case before an administrative hearing officer. -4-

7 CONCLUSION This court should grant jurisdiction to determine whether a county agency CCVSC should be granted immunity from civil liability when any county agency in this state denies any litigant their right to due process of law (and in this case was appellant denied due process of law) and whether a state agency charged with upholding the state and federal constitutions on subject of due process of law can be held liable for denying any litigant due process of law under the guise of investigating a charge of discrimination (as was done in this ease by OCRC). The appellant requests this court take jurisdiction to decide the above issues and appellant hereby states this case involves matters of public and great general interest and raises substantial constitutional questions. Appellant further requests this court accept jurisdiction in this case so that important issues presented will be reviewed on the merits. Respectfully submitted, Le oy reasey, M. ro e. Counsel of Recor 5-

8 CERTIFICATE OF SERVICE I, certify that a true copy of the foregoing was hand delivered to William D. Mason, Cuyahoga County Prosecutor at his usual business address Justice Center, Criminat Clerk's Office, 1200 Ontario Street, Cleveland, Ohio on this day o1' August 2008, and a copy of the same was mailed lst class postage prepaid to Office of the Ohio Attorney General Nancy H. Rogers c/o Shannon O'Brien, Ohio Assistant Attorney General, Civil Rights Section, 30 East Broad Street, 15t1' Floor, Columbus, Ohio on the above date. By: 6"o.. L^.L Counsel df Record -6-

9 Attachment not scanned

10 JUL Cnourt of ApVrato of (Ollio EIGHTH APPELLATE DISTRICT' COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No LEROY CREASEY, JR. PLAINTIFF-APPELLANT vs. CUYAHOGA COUNTY VETERANS SERVICE COMMISSION, ET AL. DEFENDANTS-APPELLEES JUDGMENT: AFFIRMED Civil Appeal from the " `- Cuyahoga County Common Pleas Court Case No. CV BEFORE: Calabrese, J., Sweeney, A.J., and Rocco, J.. `= RELEASED;. June 12, 2008

11 -1- FOR APPELLANT Leroy Creasey, Jr., Pro Se 1919 East 55`h Street Apartment 2211 Cleveland, Ohio ATTORNEYS FOR APPELLEE For Ohio Civil Rights Commission Nancy Rogers Interim Attorney General of Ohio Shannon O'Brien Assistant Attorney General Civil Rights Section 30 East Broad Street, 15'h Floor Columbus, Ohio FILED AND JOURNALIZED PER APP. R. 22(E) JUL GERALD E.FUER6T CLERK OFZ^ E CODEP. APPEALS BY For Cuyahoga County Veterans Service Commission William D. Mason Cuyahoga County Prosecutor Timothy J. Kollin Assistant County Prosecutor 8' Floor Justice Center 1200 Ontario Street Cleveland, Ohio ANNO'UPdCEMENT OF DECISIQN PER APP. R. 22(^, 22(D) AI^) 26(Aj REC IVr;D JUN GERALD.E.FUERST CLERX GF COElR.Fi F APPEALS -^ r-i /J r"^ Ea N.B. This entry is an announcement of the court's decision. See App:R. 22(B),.22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and.^vill^:become,-the judgment and order of the court pursuant to App.R. 22(E) unless-amotion for reconsideration with supporting brief, per App.R. 26(A); is filed within ten;(-i0) days of..:,_ the announcement of the court's decision. The time period for review by _the Supxeme ;, Court of Ohio shall begin to run upon the journalizationof this court'sannouncement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. ILr Sectaon-2(A)(lj,,: :,.

12 -1- ANTHONY O. CALABRESE, JR., J.: Pro se plaintiff Leroy Creasey, Jr. (appellant) appeals the judgment of the Cuyahoga County Common Pleas Court, which affirmed the no probable cause determination by appellee Ohio Civil Rights Commission (OCRC) regarding appellee Cuyahoga County Veterans Service Commission's (CCVSC) alleged discrimination against him. After reviewing the facts of the case and pertinent law, we affirm. I. On January 13, 2006, appellant filed a discrimination charge with OCRC, alleging that CCVSC discriminated against him on the basis of his race when it harassed him and withheld assistance pending a drug assessment. On March 26, 2006, appellant filed an amended/supplemental complaint, alleging the additional discriminatory act of failing to notify him of various hearings, and repeating his original allegations. On May 11, 2006, OCRC issued a no probable cause finding, based onthe conclusion that CCVSC is not a place;ofpublic accommodation, as appellant listed in his original charge. Appel]ant request:e.d- - reconsideration, and OCRC issued a subsequent determination-an_q.ctober:26,:- 2006, with a thoroughly researched and analyzed finding of noprobalilecause, based on tlle conclusion that appellant did not establish a 1

13 -2- discrimination. Pursuant to R.C , appellant filed for judicial review of the OCRC determination and on May 30, 2007, the court issued a decision stating that OCRC's findings were not unlawful, irrational, arbitrary, or capricious. It is from this order that appellant appeals. II. In his sole assignment of error, appellant argues that "the trial court failed [sic] protect appellant's rights to due process of law in an administrative proceeding." Specifically, appellant argues that the trial court abused its discretion by failing to "ask appellees 1) their reason for not addressing appellant's amended/supplemental complaint; [and] 2) *** inquire from CCVSC as to their reason(s) for not issuing a notice to attend hearing based upon accusations of theft of funds from appellees in amount of $ " Appellate court review of the instant case is limited to whether the trial court abused its discretion. Hous. Advocates, Inc. v. Am. Fire & Cas. Co., Cuyahoga App. Nos and 87305, 2006-Ohio-4880: The trial court cor'rectly reviewed OCRC's no probable cause determination under an "untawful;. irrational, arbitrary, or capricious" standard of review, and itis 'this=decision ^=

14 -3- Appellant is acting pro se in the instant matter and, despite the wording of his assignment of error, he essentially asks us to conduct a de novo review of the OCRC determination. This we cannot do. A reviewing court will not substitute its judgment for that of a government agency or commission in a properly entered order. See State ex rel. Ohio Assn. of Public School Einployees v. Civil Service Comm. of Girard (1976), 45 Ohio St.2d 295. What we are authorized to review is whether the trial court abused its discretion by failing to address what appellant alleges the OCRC shortcomings were. As to appellant's first argument - that OCRC did not address the supplemental complaint he filed on March 26, we conclude that the trial court did not abuse its discretion regarding this issue because OCRC did address his March 26, 2006 complaint in both its May 11 and October 26, 2006 determinations of no probable cause. As to appellant's second argument -that OCRC did not notify him of various hearings - we conclude that the court :did not abuse! its: discretion - regarding this issue because appellant put forth.no evidence. froni the:reco'rd regarding the hearings or supporting his allegation that OCRC_:failed_tti notify him of such. In addition, appellant cites no legal authority regar-dirig this :_

15 -4- Accordingly, there is no evidence in the record that the court abused its discretion, and appellant's assig-nment of error is overruled. Judgment affirmed. It is ordered that appellees recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES J.WWEENEY, A.J., and KENNETH A. ROCCO, J., CONCUR