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In re Appointment of Special Prosecutor

April 19, 2002

IN RE: APPOINTMENT OF SPECIAL PROSECUTOR


Trial Court Nos. 00-CVH-279, 01-CR-036

The opinion of the court was delivered by: Knepper, J.

DECISION AND JUDGMENT ENTRY

This is a consolidated appeal from two judgments of the Ottawa County Court of Common Pleas. The first judgment denied a motion to remove the special prosecutor appointed to investigate charges of public corruption and the second dismissed eleven affidavits charging acts by public officials designed to obstruct the investigation of public corruption. For the reasons that follow, both judgments are affirmed.

Appellants Rebekah Miller, Melody Kitzler and Elsebeth Baumgartner set forth the following assignments of error:

"ASSIGNMENT OF ERROR NO. 1:

"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO REMOVE THE SPECIAL PROSECUTOR BECAUSE THE COURT LACKED THE AUTHORITY TO APPOINT A SPECIAL PROSECUTOR IN A PUBLIC CORRUPTION CASE UPON THE MOTION OF IMPLICATED COUNTY PROSECUTOR MARK MULLIGAN.

"ASSIGNMENT OF ERROR NO. 2:

"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO REMOVE SPECIAL PROSECUTOR DEAN HENRY BECAUSE THERE WAS EVIDENCE OF MISCONDUCT.

"ASSIGNMENT OF ERROR NO. 3:

"THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S CRIMINAL AFFIDAVITS TO CAUSE ARREST AND PROSECUTION FILED WITH THE OTTAWA COUNTY CLERK OF COURTS PURSUANT TO RC 2935.09, UPON THE MOTION OF IMPLICATED PROSECUTOR MULLIGAN BECAUSE THE STATUTE PROVIDES FOR THE FILING OF AN AFFIDAVIT WITH A CLERK OF A COURT OF RECORD AND MUST BE READ IN PARI MATERIA WITH RC 2935.10."

Because the facts and procedural history leading up to and surrounding these cases in the trial court are extremely cumbersome, only that information which is necessary for an understanding of the instant appeal is set forth herein.

Appointment of Special Prosecutor (OT-01-030)

On December 6, 2000, Ottawa County Prosecutor Mark Mulligan filed a motion in the trial court asking for the appointment of a special prosecutor to look into allegations of criminal activity on the part of various state and local public officials which were set forth in a complaint filed in the Ottawa County Municipal Court by appellant Baumgartner. On that same day, Jeffrey Strausbaugh was appointed special prosecutor. The matter subsequently was transferred to the Ottawa County Court of Common Pleas. Baumgartner objected to Strausbaugh's appointment and on December 20, 2000, Strausbaugh was granted leave to withdraw as special prosecutor. On December 22, 2000, attorney Dean Henry was appointed as the new special ...


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