IGIAIAL IN THE SUPREME COURT OF OHrIO Disciplinary Counsel Columbus, Ohio 43215 Relator Case No. 2002-0288 Iduna D. Borger (0030318) 445 North Maple Street Osgood, IN 47037 Respondent RELATOR'S MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION FOR ACCEPTANCE OF AFFIDAVIT OF INDIGENCY Jonathan E. Coughlan (0026424) Disciplinary Counsel Relator Lori J. Brown (0040142) Chief Assistant Disciplinary Counsel Counsel for Relator Iduna Depweg Borger (0030318) Respondent, pro se 445 North Maple Street Osgood, IN 47037 812.609.4246 Columbus, OH 43215 614.461.0256 Lori.Brown@sc.ohio.gov ^^^'^s^, -^ ^^ ^F i^ ^;. ; 4 ^ ^,^a ^ CLERK OF COURT SUPREME COURT pf OHI
IN THE SUPREME COURT OF OHIO Disciplinary Counsel. Case No. 2002-0288 Columbus, Ohio 43215 Relator Iduna D. Borger (0030318) 445 North Maple Street Osgood, IN 47037 Respondent RELATOR'S MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION FOR ACCEPTANCE OF AFFIDAVIT OF INDIGENCY INTRODUCTION On November 16, 2012, respondent, Iduna Depweg Borger, filed a "Motion for Acceptance of Affidavit of Indigency." Respondent's motion asks this Court to accept her "Affidavit of Indigency" in "fulfillment of paragraph 7 of the Court's Order of May 9, 2002." Now comes relator, Disciplinary Counsel, and submits this memorandum in opposition to respondent's motion. For the reasons set forth herein, respondent's request that this Court accept her "Affidavit of Indigency" in lieu of payment of outstanding costs should be denied.
MEMORANDUM Respondent was admitted to the practice of law on November 4, 1985. Relator filed a formal disciplinary complaint against respondent on April 9, 2001. Relator's complaint alleged that respondent was mentally ill pursuant to Gov. Bar R.V(7) and R.C. 5122.01(A) and that respondent had committed numerous violations of the Code of Professional Responsibility. Acting pro se, respondent filed an answer to the formal complaint. After respondent filed her answer, the Board of Commissioners on Grievances and Discipline issued an order requiring respondent to undergo a forensic mental health evaluation. On May 30, 2001, respondent was evaluated by Emmett G. Cooper, M.D., Ph.D. Dr. Cooper concluded that respondent was mentally ill pursuant to R.C. 5122.01. Respondent filed objections to Dr. Cooper's report and the matter was set for hearing before a three-member panel of the board. A hearing was held on January 28, 2002. Although she was provided with notice, respondent did not appear at the hearing and did not submit admissible evidence. After consideration, the board adopted the Findings of Fact, Conclusions of Law, and Recommendation of the hearing panel and recommended that respondent be suspended from the practice of law. The board's report was filed with this Court and a show cause order was issued on March 11, 2002. Respondent did not file objections to the board's report. By order filed May 9, 2002, this Court suspended respondent from the practice of law pursuant to Gov. Bar R.V(7).' In the May 9, 2002 entry, respondent was ordered ' Following respondent's suspension, her disciplinary case was stayed by the board. 2
inter alia, to pay $6,953.57 in board costs. 2 The order also states that respondent will not be reinstated until she complies with the order of suspension and until the Court orders reinstatement. To date, respondent has not paid the board costs. In the "Affidavit of Indigency" attached to her motion, respondent asserts that she is unable to find employment, that she has "no money or other assets," and that she has "continual expenses for myself and my minor son." Respondent asks this Court to accept her "Affidavit of Indigency" in lieu of payment of the board's costs. For several reasons, respondent's request that this Court permit her to file an "Affidavit of Indigency" should be rejected. S.Ct. Prac.R. 15.3 provides that "[a]n affidavit of indigency may be filed in lieu of filing fees or security deposits." (Emphasis added.) Pursuant to S.Ct. Prac. R. 15.1, filing fees "shall be paid before a case is filed[.]" (Emphasis added.) Likewise, the "security deposit" required by this Court to institute an original action "shall be paid before the case is filed." (Emphasis added.) S.Ct. Prac. R. 15.2. Clearly, affidavits of indigency are accepted by this Court before a case is instituted and PDIY in cases in which a party is seeking a waiver of filing fees and/or sec,urity deposits. Quite simply, this Court's Rules of Practice do not permit a party to file an "Affidavit of Indigency" to discharge the payment of costs ordered by this Court. Not only has respondent asked this Court to accept an "affidavit of indigency" long after her case was decided by this Court, she is seeking a waiver of costs that were attributed to her by this Court at the time of its judgment entry suspending her from the 2 Respondent's motion states that "with interest" the amount owed as of August 8, 2012 was $18,035.77. Relator has been unable to confirm that such amount is accurate. 3
practice of law. In other words, respondent is not seeking a waiver of "filing fees" nor is she asking for a waiver of a "security deposit" pursuant to S.Ct. Prac. R. 15.3.3 Board costs imposed by this Court in attorney discipline cases are markedly distinguishable from mandatory fines imposed in criminal cases. Mandatory fines are statutory, imposed by the trial court at the time of sentencing, and assessed in addition to court costs. See, e.g. R.C. 2929.18. In cases of criminal convictions subject to mandatory fines, if an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and if the court determines that the offender is in fact, indigent, the fine shall not be imposed at the time of sentencing. See, R.C. 2929.18(B)(1). Needless to say, R.C. 2929.18(B)(1) has no applicability in this proceeding. Nearly 11 years ago the board recommended to this Court that the costs of these proceedings be taxed to respondent. See Gov. Bar R.V(8)(D). Respondent did not object to the board's recommendation nor has respondent ever offered this Court sufficient reason or analysis to overturn or modify the board's recommendation as to the costs of the proceeding. In conclusion, an "Affidavit of Indigency" may be accepted by this Court solely in lieu of filing fees or security deposits. It cannot be accepted post-judgment in lieu of payment of the costs imposed upon a respondent pursuant to Gov. Bar R.V(8)(D). Accordingly and for all of the aforestated reasons, respondent's "Motion for Acceptance of Affidavit of Indigency" should be denied. 3 Respondent completed her "Affidavit of Indigency" on the form provided by this Court as Appendix E to the Supreme Court Rules of Practice. Respondent crossed out the phrase "the filing fee and security deposit, if applicable, be waived" and wrote, "para. 7 of Order filed 5-9-2002 be fulfilled by this affidavit of indigency." 4
Respectfully submitted, Jo,Ka^han E. Coughlan`(0026424) Disciplinary, unsel, Relator 4-C^l Lori J. B o n(0040142) Counsel for Relator Chief Assistant Disciplinary Counsel Columbus, Ohio 43215 614.461.0256 Lori. Brownasc.ohio.gov Certificate of Service I hereby certify that the foregoing response to respondent's Motion to Accept Affidavit of Indigency was served via U.S. Mail, postage prepaid, this 26th day of November 2012 upon Respondent, Iduna Depweg Borger, 445 North Maple Street, Osgood, IN 47037 and via hand delivery upon Richard A. Dove, Secretary, Board of Commissioners on Grievances and Discipline, Supreme Court of Ohio, 65 S. Front Street, 5th Floor, Columbus, OH 43215. Lori J. B wi Counsel for Relator 5