F^ LE. 3rt thue Couxt of Obio. MAY G CLtHK UF COURT SUPREME CDUR7 OF OHIO. Carolyn J. Elam. On Appeal from the

Transcription

1 3rt thue Couxt of Obio Carolyn J. Elam Case No I3 On Appeal from the Appellant V. Appellees Employment & Family Services 1641 Payne Avenue Cleveland, Ohio Rm. 505 and Child Care Certification Worker, Mae Houston 1641 Payne Avenue Cleveland, Ohio Rm. 505 and Child Care Supervisor, Shareefah Thornton-Saleem 1641 Payne Avenue Cleveland, Ohio Rm. 505 and Adxni.nistrative Appeals Hearing Officer Kathleen Newton 1641 Payne Avenue Cleveland, Ohio Rm. 505 and Assistant Prosecuting Attorney Francis X. Cook, et al., Cuyahoga County Assistant Prosecutor 1641 Payne Avenue Cleveland, Ohio Rm. 505 Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. CA F^ LE MAY G CLtHK UF COURT SUPREME CDUR7 OF OHIO Timothy J_ MeGin.ty, Prosecuting Attorney of Cuyahoga County ( ) Francis X. Cook ( ) Assistant Prosecuting Attorney 1641 Payne Avenue Cleveland, Ohio Rm. 505 MEMORANDUM FOR RECONSIDERATION IN SUPPORT OF JURISDICTION OF APPELLANT CAROLYN J. EI.A.IVM

2 REQUEST FOR RECONSIDERA,TION AND WRY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION The Fifth Amendment Constitutional Right to Due Process is violated every day in this State and the entirety of the awesome burden for finding a remedy has rested, not alone on the government, not alone on the courts, and certainly not on the Cuyahoga County, ElV1PLOYMENT& FAMILY SERVICES, but on individuals, such as me Carolyn J_ Elam (Plaintiff). I hold no position of authority or accountability with regard to the protection of constitutional guarantees, yet I am left with the responsibility of securing that which our governm.ent has abdicated. It appears that no matter what evidence or statutes that Plaintiff presented to the courts in support of her position of the malicious acts of the Defendants, the lower courts has openly ignored or overlooked and has dertied Plaintiff of her constitutional right to a jury trial pursuant to Civ. R. 38. Plaintiff Carolyn J. Elam request's reconsideration of this case for it involves a substantial constitutional question and involves a great general interest to the public "We the people". When Defendants such as: Employment Job & Family Services, Child Care Certification Worker; Mae Houston, Appeals Hearing Officer; Kathleen Newton, Child Care Supervisor; Shareefah Thorton-Saleem, Attorney Francis X. Cook agents of a "Political Subdivision of the Government" utilize powers of prohibiting contractors (Professional Child Care Certification Workers) to contract for "publicly funded children", when these agents are given powers of granting, revoking, terminating certificates/licenses unlawfully and improperly this involves proper application of those criteria that determine a case of public or great general interest and 1

3 involves a substantial constitutional question. In Cuyahoga County, the actions of agents abusing powers and authorities go unchallenged or unchecked can have an adverse effect of over 7,000 Child Care Provider, subsequently over 21,000 Publicly Funded Children and working parents depending on the care and usage of services provided by Professional Child Care Providers. Plaintiff's intent is not to reargue her case but to hopefully direct this Honorable Supreme Court's attention of the possibility of the law and facts that may have been overlooked due to the lack of Plaintiff's ability to formulate legal term.inology and argue her case in a manner in which this court is accustomed too. In Cuyahoga County there are over 7,000 Professional Child Care Providers contracted with Employment & Family Services and over 21,000 publicly funded children that receive child care assistance through these 7,000 Professional Child Care Providers. This case is of great general interest to the public for it affects so many citizens in the county and state of Ohio. If this case is not heard by Supreme Court or by jury trial on its merits and law, in Cuyahoga County over 7,000 Professional Child Care Providers contracted with Employment & Family Services and over 21,000 Publicly Funded Children and working Parent will pay the price of having no protection and no redress against individual agents of a "Political Sub-Division of the Government" that choose to systematically abuse their powers and authorities maliciously, wantonly, and choose to exercise tranny at its discretion to cause unwarranted acts of unlawful acts, fraud and illegal procedures. These tortfeasors Defendants: Employment & Family Services ("EFS") Child Care Certification Worker; Mae Houston (Houston), Appeals Hearing Officer; Kathleen Newton (Newton), and Child Care Supervisor; Shareefah Thorton-Saleem (Thorton-Saleem) abused their 2

4 powers and authority collectively, conspired too and did terminate Plaintiff Carolyn J. Elam Professional Type B Child Care Certification (certification) unlawfixlly. The abuse came as the result of each violating various statutes of the Ohio Revised Code Chapter , 119_ , Ohio A.dministration Code Chapter 5101: , 5101: , the Ohio Constitution Right to Due Process and the United States Constitution, the non-compliance of Cuyahoga County Common Pleas Court order to re-instate Plaintiff's Type B Child Care Certification, violating R.C "Acts in contempt of court". Since there has not been an audience of a jury trial to litigate Plaintiff's claims of Abuse of Process, Malicious Prosecution, EFS non-compliance with Cuyahoga Common Pleas Court to re-instate her certification, EFS and its agents violating Plaintiff" s Right to Due Process, Defendants violation of R.C. Chapter 119. and and O.A.C Chapter Plaintiff's claims has been ignored and swept under the rug. Failure to ensure Plain.tiff s rights, these tortfeasors the Defendants will get away with fraud, with abuse of their powers and authorities, these agents will get away the assignation of Plaintiff's livelihood character, her health, her business, her right to contract, her home, and her way of life. The implications of the decision of the Appellate Court and the Trial Court effects every governmental entity in Ohio and sets a precedent that would give rise to Professional Type B Child Care Provider no action of recourse, remedy of redress from agents of a "Political Subdivision of the Governtnent" when they break laws and bend rules. This will give permission to agents of a "Political Sub-division" to conspire and obscure the rules and violate statutory laws with impunity. Such a ruling from these two courts will sabotage the integrity of governmental contracts and obligations and undermine the fundamental principle that the rule of law constrains government as well as citizens.

5 This entire issue initiated when EFS alleged that Plaintiff failed to give a copy of her phone number to EFS as required each year to contract with EFS and that Plaintiff was consistently unavailable for unannounced visits, which neither allegations held merit or was warranted. EFS and its agents (the remaining Defendants), constructed and fabricated issues that was not pertinent to the original allegations to justify revoking Plaintiff s certification. The Appellate court in. Case No CV found that EFS and the remaining Defendants allegations and their expanded allegations for terminating Plaintiff certification was without merit and that Plaintiff certification was wrongfully terminated. Yet, nothing has been done to correct this and the tortfeasor continue to get away with breaking law and imposing their psychotic immoral will on others concealing their unscrupulous acts under the veil of a government funetion. Proposition of Law I: Did the Appellate Court in Case No. CV uses the "three -tiered analysis in making a determination of upholding the decision of the Trial Court granting summary judgment to the Defendants. The A.ppellate Court referenced to every point of (B) (1-5) with the exception of number (B) (4) which reads... (4) Except as otherwise provided in section of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section of the Revised Code. EFS and the remaining Defendants were negligent in their duties in ensuring that the equipment used for retrieving information was functional and correct. In EFS data system and 4

6 records, Plaintiff's phone number was "inexplicably changed" and Plaintiff s written contract and generated contract containing her current phone number was removed from the records. EFS alleged that there were no existing records of Plaintiff s phone number; this led to the process of revoking Piaintiff's certification and usurping Plaintiff s rights. The Defendants" Abused the Process". The Appellate Court and the Trial Court ignored this issue of Abuse of Process and proceeded in granting summary judgment to the Defendants in spite of existing facts of genuine issues. Propositi.on of Law I[: Did the Appellate Court comply with "R.C Complete transcript of original papers, testimony, and evidence taken into consideration in issuing final order" to the legal definition of obtaining material? In the case of an administrative-related appeal other than an expedited appeal brought under sections to of the Revised Code, within forty days after the filing of a notice of appeal or the obtaining of a leave to appeal, as described in section of the Revised Code, the administrative officer, agency, board, department, tribunal, commission, or other instrumentality whose final order is being appealed shall prepare and file in the court to which the appeal is taken a complete transcript of all the original papers, testimony, and evidence offered, heard, and taken into consideration in issuing the final order. The costs of the transcript shall be taxed as part of the costs of the appeal. The Appellate Court improperly included material that was not in the original case of Case No. CA Attorney Francis X. Cook presented material that was not in the original case, he failed to send to the Plaintiff a copy of "Certificate" including improper material that he submitted to the Appellate Court. The Appellate Court based its decision on that material; the Appellate Court violated the niles, usurping Plaintiff's Right to Due Process and a fair trial. 5

7 Proposition of Law DI: Did the Court of Appeals and the Trial Court enforce Civ. I2. 56 in a manner that is consistent with the actual language in granting summary judgment to the Defendants when genuine issues of material facts had yet to be litigated? Neither the Appellate Court nor the Trial Court litigated Plaintiff s claims against the Defendants. Neither court litigated the claims of "Abuse of Process", Malicious Prosecution, Proximate Damages and remaining claim, caused by Defendants, There were no litigation of Appeals Hearing Officer: Defendant Newton violating R.C , , , and 5101: , she did not have authority to adjudicate the Appeal Hearing Review, she did not have the authority to amend statutes, she did not have the authority to revoke Plaintiff's certifioation, as an exaininer of the hearing she has not been admitted to practice law in the state of Ohio has a requirement to adjudicate. With these genuine issues of material facts existing summary judgment was granted erroneously. The Appellate Court and Trial Court did not comply with Civ. R. 56 in a manner that was consistent with the language of the rule. RESPONSE TO APPELLEES ARGUMENT FROM THE MEMORANDUM IN RESPONSE TOAPPELLANT'SMEMOEANDUIYIIN SUPPORT OF JITRISDICTION: Counsel has set forth strong tendencies to misrepresent information and continues to mislead the courts into believing that Plaintiff Carolyn J. Elam warranted a five year penalty against her certification. To make it very clear and plain, Plaintiff Elam revocation was wrongful and unwarranted, this was proved by the evidence she presented to the Appellate Court in Case No. CV The Appellate Court agreed, and stated that the ruling of the lower court and EFS decision was arbitrary, the case was reversed and remanded ca.se back to Trial Court. 6

8 Response to Appellees Proposition of law I: p.3, l. 4-5 counsel reference to a waiting period of five years "... without the five-year waiting period which would otherwise have applied." Here, counsel misrepresented information, EFS and the Trail court decision to revoke Plaintiffs certification was arbitrary and without merit, the five (5) year penalty should have never been imposed on Plaintiff. Neither EFS nor Counsel for the Defendants in Case No. Cv-l did not make any attempts to contact Plaintiff in re-instating her Professional Type B Child Care Certification. Counsel has again misled the courts. In Response to Appellee's comment of Proposition of Law II: p. 4, 1.1-4, Plaintiffs business "Growing Minds "was contracted with EFS to provide services for publicly funded children. When EFS and its agents wrongfully revoked Plaintiff's certification and contract and EFS failure to re-instate her certification as order by the courts, Plaintiff could no longer legally operate her business and contract with any other agencies that service publicly funded children. Appellee's comment of Proposition of Law III: The Appellant Court did not address the issues that the trial court failed to litigate any of Plaintiff's Elam genuine issues of material fact which are as follows: (1) EFS failure to re-instate Plaintiff's Elam Child Care Type B Certification. (2) EFS contempt of court for not re-instating Plaintiff's Elam child Care certification. (3) EFS and its agents "Abuse of Process" violating or , , , O.A.C. 5101: , 5101:2-14 (4) EFS agents Newton, Thorton-Saleem, Houston and Cook carried out the elements of "Malicious Prosecution" each continued proceedings without proper cause or reasonable grounds. 7

9 On p.4, and p. 5,1.1-5 Counsel referenced to Plaintiff introduces a new allegation of Appeals Hearing Officer: Defendant Newton did not have the authority to adjudicate the Appeals Hearing Review. Again, Counsel misrepresents and falsifies information and misled the court. Plaintiff had made assertions in Case No. CV that appeals Hearing Officer Kathleen Newton did not have the authority to adjudicate the Appeals Hearing Review pursuant to RC , and that Appeals Hearing Officer did not have the authority to amend statues pursuant to R.C , or make a determination pursuant to R.C Again, counsel misrepresents information including his reference to O.A.C 5101: and R.C he claims that these statues to not pertain to EFS, as you see for yourselt it does. 5101: Chapter 119. hearings: appointment and powers of a hearing examiner and rules of practice. (E) Authority of hearing examiners appointed by OD]FS The director may assign a hearing examiner to conduct any hearing held subject to Chapter 5101:6-50 of the Administrative Code. Any person assigned to be a hearing examiner must be admitted to the practice of law in the state of Ohio and have such other qualifications as the director deems necessary. The hearing examiner may be an employee of ODJFS or under contract to OD7FS. The hearing examiner has the same powers as granted to OD]FS in conducting the hearing. These powers include, but are not limited to, the following: Counsel again misrepresents information and misleads the courts on p. 5_ Para. 2. L-16, p.6, Plaintiff Elam did not say that Defendant Attorney Cook of Staff Attorney Nancy Scracella conspired against her. Plaintiff asserted that both Defendant Attorney Cook and Staff Attorney Scarcella engaged in exparte' communication. Defendant Attorney Cook states so himself that he was advised by Staff Attorney Nancy Scarcella in his briefs in Case No. CV and in his brief to the Appellate Court Case No. CA Defendant Attorney Cook filed motion to convert Plaintiff motion March 3, 2010 at around 2:30 p.m. which was 8

10 prior to the Case Management Conference (CMC). Attorney Nancy Scarcella advised Plaintiff to sign document. There is a conversation of both Plaintiff Elam and Nancy Scarcella August a (The CMC is the rule of the trial court). Again counsel chooses to misrepresent information. There is nothing in the court dockets that states, illustrates that Plaintiff Elam's motion for Workman comp/administration Appeal was erroneously treated by the court. Counsel continues to misrepresent information to the court. CONCLUSION The Appellate Court and the Trial Court violated Plaintiff's right to due process when they failed to: comply with the procedures, when they did not make sure that Plaintiff had the opportunity to reply, making sure that Plaintiff was heard by a jury of her peers, make sure that the rules were followed pursuant to Ohio Civil Rules of Procedures. The Appellate Court and the Trial Court did not make sure that opposing counsel and others did not take undue advantage of Plaintiff's lack of knowledge of the law, or undue advantage of the skills they practice on a regular bases, and to make sure that the Defendants and opposing counsel did not continue to cheat, bend and break the rules. With all of these obvious violations and errors by the lower courts and the Defendants how was summary judgment possible? How is this not a substantial question of constitution and great interest to the public? What will it take for these offenders of justice to stop? The courts were established to protect the beneficiaries of the Constitution I am beneficiaries. I ask of this Supreme Court for protection against these tortfeasor, against the Defendants that manipulated the law and justice. Without an actual jury trial a fair trial which 9

11 includes evidentiary proceedings, cross examinations, a right to face her excuser, justice will not be served and the U.S. Constitution and the Ohio Constitution written words will be just that "words", holding no value to protect the innocent and citizen. Prior to Plaintiff having to vacate her home of twenty years, there were four attempted break-ins. Plaintiff conf"acted the police four times and each time her response from the police was we can't help you, we can't protect you, you are not a priority. EFS and the remaining Defendants initiated these acts of the assassinating my character, they robbed me of right to due process, my livelihood, my home, and my business, my right to contract, my health and destroyed my way of life. Now, I ask of this Honorable Court for protection, protections of my Rights and to see that these tortfeasos the Defendants take responsibility of their egregious actions and be reprimanded for them. For these reason discussed in the above pages, this case involves matters of public and great interest and a substantial constitutional question. Therefore, Plaintiff Carolyn J. Elam requests that this Honorable Court accept jurisdiction and reconsider this case so that the important issues presented will be reviewed on the merits and law, and for all Professional Type B Child Care Providers will be treated fairly under the law and that the lower courts will appropriate guidance and decision from this Honorable Court on these issues going forward.. Respectfully Submitted, Dated this ay 6)013 Carolyn J. Elam 317 East 216'h St. Euclid, Ohio , (216)

12 CEI2TIFICATE OF 9ER."VZCE I certify on May 3, 2013 a copy of forgoing Notice of Reconsideration was sent U. S. mail to the following: Attorney for the Defendants Attorney Timothy J. McGinty, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio and Attorney Francis X. Cook, 1641 Payne Avenue, Rm. 505, Cleveland, Ohio 44114, Tel: (216) , Fax: (216) 98^181, 11