ATTORNEY AT LAW
From : Norman Sirak
Re : Progress Report for January 16, 2004
Our motion for Summary Judgment was filed when it was due on December 8th, 2003. The Attorney General's Office has sixty days to answer our filing. This would mean that an answer is due on February 8th.
We are anticipating a request for an extension, but no such request has been submitted as of this writing. Previously, two extensions have been taken by Ohio's Attorney General. A third extension must be justified. But given the tremendous amount of evidence filed to support four very long claims (Ex Post Facto, Separation of Powers, Due Process and Bad Faith), a third extension can be justified. I am anticipating an extension of at least another 60 days. Hopefully, it will not be any longer.
Once the Attorney General answers our claims, we get 30 days to Reply. After our Reply is submitted, the file is decisional. At this point, Judge Carr is in a position to review these claims and issue his decision. Barring something unforeseen, such as a long and drawn out jury trial in his courtroom, I expect him to review these claims as quickly as practicable. At least 1 month and possibly as much as two months must be allowed for this review. This decision is destined to have far reaching consequences.
If this calendar is not disturbed, a decision can come this summer. We are pressing hard for a decision. So far, we have never asked for an extension. That said, I will admit that we needed the two extensions taken by the Attorney General just as badly as they needed them. This lawsuit has placed pressure on the Parole Board since its outset, but the pressure has just been ratcheted upward several notches. In fact, it would be fair to say that our pressure is now nearing maximum. The operations of a Parole Board have never been revealed and analyzed in the detail exhibited by our claims.
For the most part, it has been eerily quiet since our claims were filed. Please report back to us, any signs of stress produced by this pressure upon the Parole Board or the Department.
One reflection of heightened pressure has already become obvious. We have been receiving a flood of calls and letters, asking if we are still taking new clients. This occurred in the past, but the latest rumor is different. Previously, this false rumor seemed to be coming from just a single prison or it was confined to a few prisons. The current false rumor is coming from a much broader base and from all areas of the state. I am convinced that this latest rumor has been started by Department staff, threatened by our latest filings. The answer to this rumor is YES, we are still taking in new clients. We rely upon the flow of new clients to finance this litigation. This lawsuit is far from over. The expenses incurred in chasing down evidence and hiring experts were enormous. Please encourage others to join.
Another frequent question concerns our filing for monetary damages. Many are wondering if this has been filed and, if it has not been filed, when it will be filed. The quick answer is again, yes, this claim has been filed.
The question of monetary damages involves two questions or issues, and must be addressed in two stages. The first issue concerns the threshold question of liability for damages. The second question involves the amount of damages. Before you can discuss the second issue, you must win the first round and establish liability for monetary damages. In these latest filings, we are addressing the first issue, the question of liability for monetary damages.
There are two filings directly related to the first question involving liability for monetary damages. The primary filing is Bad Faith. If we win either of our two claims for Bad Faith, liability for monetary damages will be established. The second related filing is the Brief on Immunities. Our Bad Faith claim can be styled offensive in character. The Brief on Immunities is defensive in character. The State is saying that it is immune from monetary liability because of its status as a sovereign. Our Brief on Immunities seeks to penetrate this defense. But at the end of the day, if we can successfully establish Bad Faith, we will penetrate their immunity and establish liability for monetary damages. Then, we argue about the amount monetary liability.
Another question has been asked about our filings. Why did we pass over the question of contract law, successfully litigated by Keith Randolph? Contracts are governed by state law. Because state law governs this issue, it is beyond a Federal court's standard of review. We could have argued that this was inextricably intertwined with federal issues, but there was plenty to discuss without this issue. In our Amended Complaint, I decided to argue federal issues exclusively. This explains why this issue was not included.
Finally, I would like to share something that I just received from one of my liaisons at Marion. The following paragraph is a quote from this letter.
"You might find it interesting to know that you and our lawsuit is part of the training information being disseminated at the Correctional Officers Training Academy at Orient. A new guard told one of our Named Plaintiffs this as he was searching his living area and personal possessions after the new guard saw some of the case's paperwork. I felt this was pretty interesting and something you should know. Our lawsuit has caused quite a stir throughout "the system," Mr. Sirak, and has become a part of "the system's" history. After all, this is a historical time in the annals of Ohio Prison history. I doubt that there will ever be anything like it again. But I thought you should know what is being said and done."
I consider this important news. Incidentally, there is a prominent display of Ohio prison history in the basement of the building housing Ohio's General Assembly in Columbus. The walls are covered with large pictures, with extensive commentary about each scene portrayed. I am a very slow reader, but it took me at least an hour to read all of these displays. Ohio prison history is etched deeply into the history of Ohio.
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