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STATE ex rel. MARK W. MILLER : A1801834

Relator : Judge Robert P. Ruehlman



Now comes the Relator, Mark W. Miller, on relation to the State of Ohio (“Relator”), by

and through undersigned counsel and hereby tenders this reply memorandum in support of his

motion for an order to directing the respondents why they should not be held in contempt for

failing to comply with this Court’s Order to produce documents in response to the Relator’s

discovery requests.

While Respondents now, belatedly seek a stay of the Court’s order, the simple fact is they

were ordered to produce the documents by November 2, 2018. They did not, and they did not

seek a stay of the Court’s order until November 15, 2018. Thus, they cannot purge their

contempt with an untimely request for a stay.

Moreover, and previously undisclosed to this Court by the Respondents, at least two of

the Respondents have destroyed evidence in this case. On November 20, 2018, Counsel for the

Respondents notified Relator’s counsel that Respondent Wendell Young intentionally deleted all

or most of his text messages from his cell phone, and that sometime after this case was filed,

Respondent Tamaya Dennard somehow dropped her cell phone in a pool. By their actions,

Young and Dennard have tampered with evidence in this case, and destroyed public records.
Further, it is believed that Young deleted the text messages after October 23, 2018, i.e. after this

Court issued its Order denying the Respondents’ motion for a protective order. Finally, and

critical to this Court’s analysis of not only this pending motion, but for a motion for sanctions

that Relator anticipates filing at a future date; Respondents’ counsel were made aware of Young

and Dennard’s actions no later than November 10, 2018. And made no mention of these facts to

this Court or the First District Court of Appeals in this case, the appeal, or the public records suit

filed as an original action in mandamus with the First District Court of Appeals. Notably, for

instance, the Respondents’ counsel failed to include this fact in their memorandum in opposition

to the contempt motion that was filed a mere five days after they claim to have been informed of

the destruction of the evidence.

Attorneys from the City Solicitor’s office have represented to Relator’s counsel that the

City Solicitor’s office was made aware of this information on or about November 10, 20181

when attorneys from the law firm of Dinsmore and Shohl – the outside counsel hired in the wake

of the apparent conflict of interest (and who have continued to be involved in the process of

downloading text messages from the Respondents’ phones). But, the Dinsmore attorneys were

still in this case until at least November 15, 20182, but again, made no effort to inform this Court,

or Relator’s counsel of the destruction of evidence.

The breadth and scope of contempt on display by the Respondents is unprecedented. This

conduct imperils the ability of the Courts to function, and for the public to have any faith in the

On a telephone call with Brian Shrive on November 20, 2018, Emily Woerner and Peter
Stackpole stated that the Solicitor’s office was made aware of the destruction of the text
messages “ten days ago.” Relator’s Counsel is uncertain whether this was a general guess, or
meant to be a precise time. Thus, the use of “on or about” November 10, in this memo.
To date, the attorneys from Dinsmore and the Taft law firm have not sought this court’s leave
to withdraw from the case.

ability of the Courts to mete out justice.3 It destroys the very fabric of our government when

elected officials so freely flout the authority of the courts, and conspire to deceive not only

opposing counsel, but the Court itself.

In this instance, justice demands that the Respondents be brought before the Court to

explain how and why they believe it is at all appropriate for them to ignore the Court’s order, to

destroy evidence, and to engage in a scheme to deceive the court and opposing counsel about

that destruction. This is the proper and just role of the Court in our society.

This is not the first time elected officials have challenged the authority of the Courts to

enforce their orders. President Andrew Jackson reportedly once said in the face of a unfavorable

ruling from the Supreme Court, “John Marshall has made his decision; now let him enforce it!”

The Respondents now propose the same challenge to this Court. And this Court must not let that

challenge go unanswered.

While the Respondents’ counsel is correct that government actors may obtain a stay of

enforcement without a supersedeas bond, they must, nonetheless, request a stay from this Court.

In their memorandum, Respondents’ counsel points to First District Court of Appeals decisions,

but ignore the binding Ohio Supreme Court decision cited to by the Relator in the contempt

motion making clear that when appealing a discovery order, the appealing party must both file

the appeal and seek a stay in order to avoid a finding of contempt. See, State ex rel. Mason v.

Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224. That the Respondents failed to

seek a stay until after the contempt motion was filed suggests that the Respondents’ cavalier

attitude toward the orders of this Court is not theirs alone.

Of note, former President Clinton was impeached and ultimately stripped of his license to
practice law for having lied under oath. Demonstrating that it is the integrity of the Courts that
are of paramount concern in our society.

Because of the egregious nature of the conduct by the Respondents, it is imperative that

this Court act to preserve its authority and to assure the public that justice will be served in this

matter. Relator requests that a hearing be held on this motion.

Respectfully submitted,

/s/ Brian C. Shrive

Brian C. Shrive (0088980)
Christopher P. Finney (0038989)
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6656
(513) 943-6669 (fax)

Counsel for Relator Mark W. Miller


A copy of the foregoing was served upon the following via email this 23rd day of November,


Peter J. Stackpole, Esq.

Emily E. Woerner, Esq.

Statutory Counsel for all Respondents

Bryan E. Pacheco, Esq.

Mark A. Vander Laan, Esq.

Outside Counsel for Councilmember Respondents

Aaron M. Herzig, Esq.

Donnell J. Bell, Esq.

Outside Counsel for Respondent City of Cincinnati

/s/ Brian C. Shrive

Brian C. Shrive (0088980)
Christopher P. Finney (0038989)