IN THE SUPREME COURT OF OHIO CASE NO.

IN THE SUPREME COURT OF OHIO CASE NO. GARY BAILEY Plaintiff-Appellant VS. VILLAGE OF CLEVES Defendant-Appellee ON APPEAL FROM THE HAMIT,TON COUNTY COURT OF APPEALS FIRST APPELLATE DIS'I'RIC"I' COURT OF APPEALS CASE NO. C-081099 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT Konrad Kircher (0059249) KIRCHER LAW OFFICE, LLC 4824 Socialville-Foster Road Mason, OH 45040 Tel: (513) 229-7996 Fax: (513) 229-7995 kkircl-ler@kircherlawoffice.com Boyd W. Gentry (0063154) SURDYK, DOWD & TURNER CO. LPA 1 Prestige Place, Suite 700 Miamisburg, OH 45342 Tel: (937) 222-2333 Fax: (937)222=I970 bgentry@sdtlawyers.com Counsel for Plrzintiff-Appellant

TABLE OF CONTENTS Pa e s EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION..................................... STATEMENT OF THE CASE AND FACTS............................ 2 ARGUMENT... 3 Proposition of Law No.1 :...................................... 3 Enforcement of a Civil Protection Order is a prosecution for contempt of a court order, and intent to disobey a court order is a condition precedent to a finding of contempt. Proposition of Law No. 2 :....................................... 4 It is essential to the punishrnent of a person for contempt of a court order that he have notice of the order, and the tenets of procedural due process mandate that the alleged contemnor receive notice of the order through a court. Proposition of Law No. 3 :...................................... 4 A prosecution for violation of a Civil Protection Order without proof that the Order has been properly served upon the respondent deprives the alleged violator of constitutional and statutory due process rights, and arrest and incarceration pursuant to such a prosecution deprives the alleged violator of constitutional liberty rights. Proposition of Law No. 4 :...................................... 4 A municipal policy which does not require verification prior to arrest that the alleged violator has been served with a Civil Protection Order prior to allegedly violating the Order deprives the alleged violator of procedural due process and liberty interests. CONCLUSION... 7 CERTIFICATE OF SERVICE......................................... 7

APPENDIX Appx. Paee Judgment Entry of the HamiIton County Court of Appeals....................1 (August 5, 2009)

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION Plaintiff/Appellant Gary Bailey ("Bailey") was arrested for alleged violation of a Civil Protection Order ("CPO") issued pursuant to R.C. 3113.31. He had not been served with the CPO prior to the alleged violation or even prior to his arrest. The municipal policy of Defendant/Appellee Village of Cleves ("Cleves") does not require that its police officers verify service of a CPO prior to arrestirig an alleged violator. Bailey was incarcerated and prosecuted. The Court of Appeals decided that Cleves officers need not verify service of a CPO before making an arrest as long as the officers have probable cause to believe the CPO was violated. Yet it is fundamental that a person cannot be convicted of violating a court order about which he had no knowledge. Service of the CPO on the day it is issued is a statutory prerequisite to prosecution for violation of the Order. Thus, probable cause cannot exist without proof of service. Tf the Court of Appeals reasoning is permitted to stand, then citizens wil.l routinely be arrested for alleged violations of CPOs without any regard to whether they knew of their restrictions. The policy will be "arrest first and ask questions later" or "arrest them all and let the courts sort them out. Such a policy is neither constitutional nor in the public interest. I

STATEMENT OF THE CASE AND FACTS On July 3, 2006, Lesa Bailey obtained an ex parte CPO from the Domestic Relations Court of Hamilton County, Ohio. '1'he CPO prohibited her husband, Plaintiff/ Appellant Gary Bailey, from, among other things, contacting Lesa. The Order was issued pursuant to R.C. 3113.31. That statute requires that a copy of the Order be delivered to the respondent the same day as the Order is issued. R.C. 3113.31(F). However, that task was not accomplished. Lesa contacted the Village of Cleves Police Department the evening of July 3, 2006 concerning an alleged violation by Bailey of the CPO. Sgt. Steven I Iickey was the Shift Supervisor for Cleves that evening. Hickey and another officer met with Lesa at her residence concerning her allegations. Lesa showed the officers the CPO and her cell phone call log indicating that Bailey had telephoned her several times that day following issuance of the Order. Lesa did not claim that Bailey had been served with the CPO. Nor did l.esa insist that Bailey be arrested. Cleves has a written policy entitled "Enforcement of Court Orders." The policy instructs an officer who is investigating an alleged violation of a CPO to: 3. Confirm a CPO issued by Hainilton County Domestic Relations Court or any other Ohio Domestic Relations Court, according to O.R.C. 3113.31 (Domestic Violence), by one of the following: a. Call the Hamilton County Central Warrant Processing Unit to confirm the terms and existence of the Order. b. Call the clerk of courts office in the issuing jurisdiction for an outof-state county court order. Confirm the existence and terms of the CPO. 2

Section 4 of the policy then requires the officer to make an immediate arrest if probable cause exists of an alleged violation of the terms of the CPO. Cleves police officers are not required to confirm that the respondent has been served with the CPO prior to making an arrest. The officer is only required to check that the CPO is "valid," meaning that it has been issued by a Court. After hearing Lesa's story, Hickey walked outside her residence and used his cell phone to call Hamilton County Central Warrants. He confirined with Central Warrants that the CPO was "valid" or "in effect." He does not remember whether he asked Central Warrants whether Bailey had been served with the CPO, but normally he would just call to confirm whether the Order was valid or not. I-le does not recall whether Central Warrants told him Bailey had not been served. Later that day, Hickey encountered Bailey and arrested him for violation of the CPO. Bailey was charged with R.C. 2919.27, violation of a CPO. He was transportcd to the I-Iamilton County Justice Center and incarcerated. Weeks later Judge Berry of L[amitton County Municipal Court acquitted Bailey with the finding "DWP [dismissed with prejudice] - Defendant never served w/ P.O." ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: Enforcement of a Civil Protection Order is a prosecution for contempt of a court order, and intent to disobey a court order is a condition precedent to a finding of contempt. 3

I'roposition of Law No. 2: It is essential to the punishment of a person for contempt of a court order that he have notice of the order, and the tenets of procedural due process mandate that the alleged contemnor receive notice of the order through a court. Proposition of Law No. 3: A prosecution for violation of a Civil Protection Order without proof that the Order has been properly served upon the respondent deprives the alleged violator of constitutional and statutory due process rights, and arrest and incarceration pursuant to such a prosecution deprives the alleged violator of constitutional liberty rights. Proposition of Law No. 4:. A municipal policy which does not require verification prior to arrest that the alleged violator has been served with a Civil Protection Order prior to allegedly violating the Order deprives the alleged violator of procedural due process and liberty interests. A municipality is liable for injury to a citizen if the citizen establishes that the municipal policy was the moving force behind the deprivation of the citizen's rights. Mojiell v. Dep't of Soc. Seros, 436 U.S. 658, 694 (1978). Under MonelI, Cleves is liable to Gary Bailey in this case if Bailey establishes that an officially executed policy led to, caused or resulted in the deprivation of a constitufionally protected right of Bailey. Doe v. Claiborne County, 103 F. 3d 495, 507 (6th Cir. 1996). Bailey was deprived of constitutional due process and liberty rights by being arrested and incarcerated for violating an Order of which he had no knowledge. A CPO is, literally, a court order. A person who allegedly violates a protectlon order issued under 3113.31 is subject to either criminal prosecution or contempt of court. 31"13.31(L). The Cleves policy concerning arrest for alleged violations of a CPO

is entitled "Bnforcement of Court Orders." Therefore, enforcement of a CPO through criminal prosecution is at its core a prosecution for contempt or violation of a court order. Courts unquestionably have jurisdiction in contempt proceedings to compel obedience of their lawfully issued orders. Crarner v. Petrie (1994), 70 Ohio St. 3d 131, 133, Yet, intent to disobey a court's order is a condition precedent to a finding of contempt. City of Cleveland v. Anderson (1992), 82 Ohio App. 3d 63, 67. Tt is fundamental that an intent to violate an order can only follow notice of the order. The legislature has mandated that a respondent must receive a copy of the CPO on the same day it is issued. R.C. 3113.31(F). It is essential to the punishment of a person for contempt or violation of a court order, that he have notice of the order, either actual or by service of the same upon him. Sancho v. Sancho (1996), 114 Ohio App. 3d 636, 642-643. To show contempt, it is necessary to establish that there is a valid court order, knowledge of the order, and a violation of it. Id. at 643, citing Arthur Young & Co. v. Kelly (1990), 68 Ohio App. 3d 287, 295. The tenets of procedural due process mandate that the alleged contemnor receive notice of the charges through a court. Sancho,114 Ohio App. 3 at 641. State v. Mohabir, 2005 Ohio 78 (Fifth Dist.), is a case with a great deal in common with the present case. In Moliabir, the individual was arrested and charged with violating the terms of a temporary protection order, in violation of R.C. 2919.27, the same charge Bailey received in this case. Just as in this case, Mohabir was not served 5

with a copy of the protection order prior to his alleged violation of it. The court in Mohabir observed: Tlie protection order statute makes criminal conduct that would otherwise be legal; therefore the statute's requirements must be strictly construed in favor of the defendant and against the state... Therefore, the statute's due process requirements must be complied with prior to a trial courfs finding a violation of a tetnporary protection order pursuant to R.C. 2919.27. [citation omitted] Zd. at *P34. Accordingly, the Mohabir court reversed the conviction just as Judge Berry in this case dismissed the charge against Bailey. Consequently, an individual may not be successfully prosecuted under 2919.27 for violation of a CPO unless the individual has been served with the CPO prior to the alleged violations. A prosecution without proof of service violates constitutional and statutory due process rights. Arrest and incarceration pursuant to the prosecution deprives the individual of his constitutional liberty rights. The Cleves policy only requires that its police verify that the order has been issued prior to depriving an individual of his due process and liberty interests through prosecution, arrest and incarceration. The policy thus proinotes the violation of constitutional rights by failing to irquire its police to also verify that the alleged contemnor has been served with a copy of the order, as is required by R.C. 3113.31(F). Amending the policy is a very simple procedure, and having the police officer ask one more question in his telephone call to Central Warrants, or make a second call to the Sheriff's Office, is certainly not unreasonable. 6

CONCLUSION 'I'he policy of the Village of Cleves must be declared unconstitutional to protect citizens from unjustified arrests and prosecutions. Gary i3ailey respectfully requests that the Court accept this appeal and hear the matter on its merits. Respectfully submitted, Konrad Kircher (0059249) KIRCHER LAW OFFICE, LLC 4824 Socialville-Foster Road Mason, OH 45040 TeL (513) 229-7996 Fax: (513) 229-7995 Counsel for Ptaintiff-Appetlant CERTIFICATE OF SERVICE This will certify that a true copy of the foregoing Memorandum in Support of Jurisdiction has been served upon Boyd W. Gentry, Esq., SURDYK, DOWD & TURNER CO., LPA, 1 Prestige Place, Suite 700, Miamisburg, OH 45342, Attorney for the Defendant-Appellee by ordinary U.S. Mail, postage prepaid, this j0s^day of September, 2009. Konrad Kircher Counsel for Plaintiffs-Appellants 7

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO GARY W. BAILEY, vs. Plaintiff-Appellant, APPEAI. NO. C-o8io99 TRL-^L NO. A-o610026 JUDGYIENT ENTRY. VILLAGE OF CLEVES, OHIO, Defendant-Appellee. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court.' Plaintiff-appellant, Gary W. Bailey, appeals the summary judgment entered by the Hamilton County Court of Common Pleas in favor of defendant-appellee, the village of Cleves, Ohio, in a suit alleging that a village policy was unconstitutional under Section t98i et seq., Title 42, U.S.Code. A policy and procedure manual promulgated by the village governed the police department's enforcement of cicil protective orders (CPOs). Under the manual, officers were to confirm the existence and terms of CPOs by contacting either the Hamilton County central-warrant processing unit or the clerk of courts of the issuing jurisdiction for out-of-county CPOs. The manual further instructed officers that "[w]hen probable cause exists, immediately arrest defendants in violation of a * * * CPO." ' See S.Ct.R.Rep.Op. 3(A), App.R. u.r(e), and Loc.R. 12.

OIIIO FIRST DISTRICT COURT OF APPEALS On July 3, 2007, the Hamilton County domestic relations court issued an ex parte CPO preventing Bailey from having any contact with his wife, Lesa Bailey. That same day, Lesa Bailey called the village police and informed thetn that Bailey had violated the CPO. Bailey was arrested even though he had not been served rvith a copy of the CPO at the time of the alleged violation. A charge of violating the CPO under R.C. 2929.27 kvas ultimately dismissed for lack of service. Bailey sued the village, claiming that the policy under which he was arrested violated his civil rights. Specifically, he eontended that because the policy did not require verification of sen-ice, it permitted the wrongful deprivation of his liberty. Bailey filed a motion for partial summary judgment on the issue of liability only, and the village also filed a motion for sunimary judgment. The trial court denied Bailey's motion and entered summary judgment in favor of the v-illage. In two related assignments of error, Bailey now argues that the trial court erred in denying his motion for partial summary judgment and in entering summary judgment in favor of the village. We address the assignments together. Under Civ.R. 56(C), a motion for summary judgment may be granted only when no genuine issue of material fact remains to be litigated, the mo-ving party is entided to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conchision, and with the evidence construed most strongly in favor of the nonmoving party, that conclasion is adverse to that party.2 This court reviews the granting of summary judgment de novo.3 In this case, the court properly granted summary judgment in favor of the village. The village's policy mandated an arrest only upon the existence of probable 2 See State ex rel. Hotoard v. Ferreri, 70 Ohio St.3d 587, 589,1994-Ohio-13o, 639 N.E.2d 1x89. 3 Jorg v. Cincinnati Black United Front, t53 Ohio r1pp.3d 258, 20o3-Ohio-3668, 792 N.S.2d 781, 6. 2

OHIO FIRST DISTRICT COURT OF APPEALS cause. The policy was therefore consistent with the requirement for a warrantless arrest4 Probable cause, in turn, means only that the officer possesses "sufficient information that would cause a reasonable and prudent person to believe that a criminal offense has been or is being committed."3 Under this standard, there is no requirement that the officer confirm every element of the crime for which the arrest is being made; it merely requires the reasonable belief that an offense has been committed. Accordingly, an arrest may be valid even though the defendant is ultimately acquitted of the underlying charge.6 In requiring the existence of probable cause, then, the village's policy comported with the law, even though it did not explicitly require the officer to verify that the suspect had been served with the CPO. We overrule the assignments of error and affirm the judgment of the trial court. Further, a certified copy of this judgment entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. HEVnoN, P.J., HtI.DESRLNn^T and S" DExMAtiN, JJ. To the Clerk: Enter upon the Journal of the Court on August 5, 2009 per order of the Court Presiding Judge 4 See State v.allwood, ist Dist. No. C-o8o277, 2oo9-Ohio-742, 8. s Id., quoting State v. Elmore, iii Ohio St.3d 515, 2oo6-Ohio-62o7, 857 N.E.2d 547,1139 6 See, e.g., State v. Lenker (Jan. 30, 199i), 2nd Dist. No. 12083. 3