Court News Ohio
Court News Ohio
Court News Ohio

Twelfth District: Lawmaker’s Attempt to Jail Governor for COVID Orders Rejected

The Clermont County Prosecutor’s Office spent five hours reviewing a former state lawmaker’s claim that Gov. Mike DeWine should be charged for terrorism and other crimes for his handling of the COVID-19 pandemic before rejecting the idea.

The prosecutor now wants the ex-legislator to pay nearly $4,000 to reimburse the county for the cost of defending the decision not to pursue the governor.

Additionally, Ohio Attorney General Dave Yost told the Twelfth District Court of Appeals in an amicus curiae brief that former 65th District Rep. John Becker should pay the prosecutor’s reasonable attorney fees or “spend a day observing criminal trials in open court, so that he can better understand the gravity of the matters for which prosecutorial and judicial resources must be preserved.”

In September 2020, the Clermont County prosecutor at the time, Vincent Faris, rejected Becker’s “private citizen affidavit” to charge the governor with seven felony and three misdemeanors.

Becker responded by filing a writ of mandamus with the Twelfth District to compel Faris to conduct a “formal and/or systematic investigation” into the purported criminal behavior of the governor.

The Twelfth District denied the writ in April 2021 and granted summary judgment to the prosecutor’s office.

Faris didn’t seek re-election in 2020, and Mark Tekulve is now the prosecutor. Becker was term-limited and could not seek re-election to office.

The prosecutor asked the Twelfth District to rule as frivolous the order to compel the office to do a further investigation. He also stated that the appellate court should award the office attorney fees and impose other sanctions on Becker.

The office calculated that two assistant prosecutors and a paralegal spent 71.83 hours handling the dispute. Based on their public salaries and fringe benefits, the county’s cost was $3,951.

The prosecutor reported the figures in a May 10 filing requested by the court as it considers the matter. Becker has until May 17 to respond to the prosecutor’s request.

Prosecutor Probe Challenged
In its April 5 opinion, the Twelfth District noted that a citizen can seek the prosecution of another under R.C. 2935.09(D) by filing a private citizen affidavit. Becker, who as a legislator sought to impeach the governor for the imposition of health orders during the start of the pandemic’s spread in Ohio, submitted his affidavit to the Clermont County Municipal Court clerk around 11 a.m. on Sept. 28, 2020.

Following the law’s directives, the clerk sent the request to Faris. Before 4 p.m. that day, Faris sent an email to the clerk, stating he reviewed Becker’s affidavit and wasn’t going to pursue charges.

Two days later, Becker’s attorney filed a public records request with the prosecutor, asking to clarify whether the prosecutor closed the case and seeking any investigatory records generated by the investigation. The office responded that no records were produced. Becker then sought the writ from the Twelfth District ordering the prosecutor to do a more thorough investigation.

Court Finds Investigation Sufficient
Faris told the Twelfth District that many of Becker’s allegations against the governor were “inapplicable on their face,” and didn’t need further investigation.

He said some of the allegations were so vague it would be “futile” to attempt to further investigate them. He said under the law, he did all that was required.

Writing for the Twelfth District, Judge Stephen Powell noted the General Assembly has not defined “investigation” when considering private citizen affidavits. The Court turned to an ordinary dictionary meaning of the word and found that it was clear the investigation didn’t have to last for any set period of time or have to result in the creation of investigatory records.

Given that Becker charged the governor with claims such as terrorism, making a terrorist threat, inducing panic, and bribery, the prosecutor didn’t need much time to investigate, the Twelfth District stated.

The court concluded that the only “investigation” that would satisfy Becker is one resulting in the prosecutor issuing a warrant to arrest the governor and prosecute him.

“But Prosecutor Faris is not required to bend the law in order to satisfy one man’s efforts to grandstand and garner media attention for himself to score political points with his (now former) constituents,” the opinion stated.

In its request for reimbursement of the legal work, the prosecutor’s office notes that Becker publicly stated that the governor’s crimes were evident and that he need not provide the prosecutor more specific information.

The office also argued that Becker indicated he didn’t really want to have the governor arrested, but wanted the charges brought to build support for his attempt to impeach the governor or to force his resignation.

The prosecutor maintained that Becker had every right to file a private citizen affidavit and the office had the duty to investigate. But seeking the writ after the investigation ended was clearly frivolous, and Becker should have to pay the costs, the prosecutor argued.

The Twelfth District assigned a magistrate to conduct a hearing on whether Becker’s actions should be considered frivolous. The court’s last entry did not indicate a date for a hearing.

State ex rel. Becker v. Faris, 2021-Ohio-1127.

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