Macko v. Byron

• Decision Date: 14 November 1983
• Docket Number: No. C77-1158.,C77-1158.
• Citation: 576 F. Supp. 875
• Parties: Joanne MACKO, et al., Plaintiffs, v. Barry M. BYRON, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

576 F. Supp. 875

Joanne MACKO, et al., Plaintiffs, v. Barry M. BYRON, et al., Defendants.

No. C77-1158.

United States District Court, N.D. Ohio, E.D.

November 14, 1983.

Herbert L. Braverman, Shore & Kanter, Charles Laurie, Jr., Cleveland, Ohio, for plaintiffs.

Burt Fulton, Cleveland, Ohio, Abraham Cantor, Willoughby, Ohio, for defendants.

MEMORANDUM OF OPINION AND ORDER

KRENZLER, District Judge.

This case was originally filed with this Court on November 4, 1977 and assigned to Judge Ben C. Green. Upon Judge Green's death in January of 1983, the case was transferred to this Court for final disposition. On June 6, 1983 the Court set this matter for trial to commence Monday, September 26, 1983 at 9:30 a.m.

Prior to September 26, 1983, the Court, after reviewing the pleadings and other material submitted by the parties and the law applicable to the issues in this case in preparation for the trial of this matter, questioned whether the outstanding allegations of the plaintiffs stated a cause of action upon which relief could be granted. On September 26, 1983, prior to the start of trial, the Court questioned the plaintiffs as to the sufficiency of the legal theory under which the case was brought. Defendants, although they had not, themselves, raised the issue of the sufficiency of the plaintiffs' complaint, were also given an opportunity to address the issue raised by the Court.

At that time, the parties, unable to provide the Court with a satisfactory answer to the question raised, requested leave to submit briefs to the Court on the issue of whether plaintiffs had stated a cause of action upon which relief could be granted.

Upon consideration, the Court continued the trial of this matter until Wednesday, September 28, 1983 at 9:30 a.m. and granted the parties leave until that time to submit briefs on the issue raised by the Court. The Court now has the briefs submitted by the parties before it.

To understand the issues presented in this case, one must also understand the history of the case. As stated before, this action was originally filed on November 4, 1977. The claims asserted by the plaintiffs arose out of a political fight in the City of Willoughby Hills, Ohio, wherein plaintiffs had sought to recall the defendants from public office.

On October 12, 1978, plaintiffs filed an amended complaint in three counts. Counts I and II asserted claims alleged to arise under 42 U.S.C. § 1983. In Count I plaintiffs alleged that defendant Monzula, as part of a conspiracy with the other defendants, violated the plaintiffs' constitutional rights by refusing to validate recall petitions submitted by the plaintiffs to her in her capacity as Clerk of Council. In Count II plaintiffs alleged that the local prosecutor, defendant Mitrovich, and his assistant, acting in concert with the other defendants, violated plaintiffs' constitutional rights by causing them to be indicted and arrested for violations of various Ohio laws relating to the recall petitions. Count III alleged that the defendants conspired to deprive plaintiffs of the equal protection of the law in violation of 42 U.S.C. § 1985.

On April 9, 1979, Judge Green filed a memorandum of opinion and order granting summary judgment in favor of the defendants on all three counts of plaintiffs' amended complaint.

Judge Green held that plaintiffs' claim in Count I was barred by the holding of the Ohio Supreme Court in State ex rel. Macko v. Monzula, 48 Ohio St.2d 35, 356 N.E.2d 493 (1976). In that case, the Supreme Court held that the recall petitions plaintiffs submitted to defendant Monzula were invalid based on a defect in the circulator's affidavit and, thus, defendant Monzula acted properly in refusing to validate them.

As to Count II, Judge Green held that defendant Mitrovich and his assistant were acting within their prosecutorial function and, thus, were absolutely immune from civil liability. Judge Green further held that the prosecutors having been dismissed by virtue of their prosecutorial immunity, the remaining defendants could not be said to have acted under color of state law, a prerequisite to maintaining an action under 42 U.S.C. § 1983.

Finally, Judge Green dismissed Count III on the grounds that plaintiffs had failed to allege that the defendants acted with a class-based discriminatory animus, which is necessary to maintain an action under 42 U.S.C. § 1985.

The plaintiffs appealed Judge Green's April 9, 1979 order to the Sixth Circuit Court of Appeals. On February 19, 1981, the Sixth Circuit entered its opinion affirming Judge Green as to Counts I and III. However, the Sixth Circuit reversed Judge Green as to Count II on the narrow grounds that the dismissal of the prosecutors based on prosecutorial immunity did not require the dismissal of the claims against the other defendants who are alleged to have conspired with the prosecutors.¹ Thus, the Sixth Circuit remanded the case to Judge Green for further proceedings as to Count II.

On May 21, 1981, the plaintiffs filed a second amended complaint in two counts. Count I again alleged that defendant Monzula, as part of a conspiracy with the other defendants, violated the plaintiffs' constitutional rights by refusing to validate the recall petitions submitted to her by the plaintiffs. Count II was redrafted to essentially allege two violations of plaintiffs' constitutional rights. First, plaintiffs alleged that the defendants conspired to deny plaintiffs equal protection of the law by knowingly and maliciously giving false and incomplete information to a grand jury, and thereby causing plaintiffs to be indicted. Second, plaintiffs alleged that the defendants' actions were designed to discourage plaintiffs from initiating a second recall petition.

On September 28, 1981, the defendants filed a second motion for summary judgment. On October 1, 1982 Judge Green granted the defendants' motion as to Count I of the second amended complaint on the grounds that it was the same claim he had dismissed in 1979 and the dismissal of which had been affirmed by the Sixth Circuit in 1981. However, Judge Green denied the defendants' motion as to Count II.² In denying the motion, Judge Green held that the plaintiffs' allegations in Count II were sufficiently specific and that, if the plaintiffs could prove at trial that a conspiracy existed, the remaining defendants could be held liable for the actions of the previously-dismissed prosecutors.

Judge Green also held, in response to an argument by the defendants that Count II essentially stated a claim for malicious prosecution which would be precluded by the indictments issued by the independent grand jury, that Count II did not assert a claim for malicious prosecution. Judge Green held, instead, that in Count II plaintiffs had asserted a claim for selective prosecution in which questions of probable cause, guilt, or innocence were irrelevant.

On October 19, 1982, the defendants filed a third motion for summary judgment asserting that defendants had not acted under color of state law as to Count II and in the absence of state action, plaintiffs' only avenue for redress would be under 42 U.S.C. § 1985. The defendants further asserted that Judge Green had previously dismissed plaintiffs' claim under § 1985, and that dismissal had been affirmed by the Sixth Circuit and, thus, any claim under § 1985 would be barred. Before Judge Green had an opportunity to rule on the defendants' motion, the case was transferred to this Court. On June 3, 1983, this Court, having found a material issue of fact as to whether state action existed, denied the defendants' motion for summary judgment.

Accordingly, on September 26, 1983, when this matter came on for trial, the only claims pending against the defendants were those set forth in Count II of the second amended complaint. The essentials of plaintiffs' claims in Count II are found in paragraphs 14 and 18 of their second amended complaint, which assert:

14. Each defendant acting under color of law and in active concert with all other defendants and pursuant to defendant city's policies and procedures did conspire to deprive and did deprive plaintiffs of the equal protection of the laws by maliciously, knowingly and unlawfully giving incomplete and false information and preventing information to be provided to a grand jury and causing an indictment to be issued against plaintiffs by giving and not giving this information to the prosecuting attorney for Lake County and subsequently this directly caused secret indictments to be issued charging perjury and various violations of the Ohio laws relating to petitions.

18. Defendants' actions were perpetrated against plaintiffs to discourage plaintiffs from initiating a second recall drive and were also intended as punishment for plaintiffs having initiated their first recall effort, all in violation of their rights as provided under the Constitution.

This Court has raised the issue of whether the allegations in these two paragraphs are sufficient to state a claim upon which relief may be granted. The Court notes that while Judge Green never expressly addressed the issue, it is clear from his previous orders that he believed that plaintiff's had stated a cause of action in Count II. However, this Court is not bound by Judge Green's unexpressed belief.

There are essentially two claims in Count II. First, that the defendants conspired to give false testimony to the grand jury in order to have plaintiffs wrongfully indicted. Second, that the defendants obtained the indictments against the plaintiffs to discourage them from initiating a second recall petition. Additionally, there is the issue of selective prosecution. While this Court is of the opinion that the plaintiffs have not asserted a claim for selective prosecution, Judge Green found the existence of such a claim in Count II, and the parties accepted his finding without challenge.

Considering, first, plaintiffs' claim in ...