Gedeon v. Frenchko

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAWN GUARINO GEDEON, )

) CASE NO. 4:22CV441

Plaintiff, )

)

v. ) JUDGE BENITA Y. PEARSON

)

MICHELLE NICOLE FRENCHKO, et al., )

)

Defendants. ) ORDER

I. Background

The above-captioned case is one of several pending against the Trumbull County Board

of Commissioners. The instant case is distinguishable in that it is one of the few naming

Defendant Frenchko, one of the Commissioners, individually.1 Having become concerned that

public comment attributed to Defendant Frenchko would taint the prospective jury pool2, inhibit

any party’s right to a fair trial, and disrupt the Court’s ability to “‘maintain appropriate decorum

in the administration of justice and [] protect the rights of the litigants from prejudice, ’” the

Court consulted with counsel3 and, thereafter, sua sponte issued a Gag Order. See Gag Order,

ECF No. 5 (indicating that, among other things, “Courts have long recognized that ‘the trial court

1 See also, 4:21-cv-02276-CEF – Glenn v. Frenchko, et al.

4:22-cv-01192-JRA – Blair v. Frenchko, et al. Cf. 4:22-cv-00077-BYP – Cook v. Board of

Trumbull County Commissioners, et al.; 4:22-cv-00441-BYP – Gedeon v. Frenchko, et al.; and

4:22-cv-01005-BYP – Vivoda-Klotz v. Trumbull County Board of Commissioners

2 All parties, in the instant case, have made a jury demand.

3 See 3/28/2022 Minutes (indicating that “[t]he parties discussed the issuance of a

Gag Order as a tool to prevent further problematic public comment on the instant matter.”).

may sua sponte issue a Gag Order upon the parties to the litigation without an evidentiary

hearing’”) (internal citation omitted).4

Shortly after issuing the Gag Order, the Court conducted a previously scheduled

telephonic Case Management Conference (“CMC”). During the CMC, counsel for Plaintiff

advised the Court of his suspicion that Defendant Frenchko had violated the Gag Order. See

7/18/2022 Minutes (indicating that all parties, including Defendant Frenchko were present).

After discussion with counsel, Defendant Frenchko was ordered to show cause as to why she had

not violated the Gag Order. Defendant submitted a timely response. ECF No. 17. After

reviewing Defendant’s response, the Court imposed a date by which Plaintiff should respond, if

so inclined. Plaintiff replied, accordingly. See ECF No. 17; ECF No. 19. Having been informed

by the parties’ filings5, the Court scheduled a hearing on the Show Cause Order. On September

12, 2022, the Court conducted a hearing on the Show Cause Order.6

Present at the hearing were Plaintiff Gedeon, Attorney Dennis R. Fogarty, counsel for

Plaintiff, and Ryan Kun (a recent law school graduate) accompanying Plaintiff's counsel.

Defendant Frenchko7 along with Attorneys Kenneth E. Smith, Michael P. Quinlan, and Kathleen

M. Minahan were also present.

4 It is also worth noting that, during the telephonic Status Conference held prior to

issuing the Gag Order, the Court discussed with counsel the specific language sufficient

for the task identified above. See 3/28/2022 Minutes.

5 On the morning of the hearing, Plaintiff’s counsel filed a Supplemental Brief

alleging additional violations of the Gag Order. See ECF No. 29.

6 The Show Cause hearing was continued to allow Defendant Frenchko to obtain

conflict-free (“special”) counsel. See ECF No. 26 (granting Defendant Frenchko’s motion

to continue).

7 As explained in greater detail below, Defendant Frenchko attended electronically.

II. Arguments

During the hearing, Plaintiff’s counsel emphasized that the Gag Order (ECF No. 5) was

“elegant in its simplicity” and clear in its intent to have the parties refrain from making any

public comments about the case. Plaintiff’s counsel argued that, despite this obvious clarity,

Defendant Frenchko repeatedly engaged members of the public on Facebook, and by her

comments during a radio interview, in violation of the Gag Order. Plaintiff’s counsel marked

several instances, following the scheduling of the Show Cause proceedings, in which Defendant

publicly attacked the merits of the allegations being made against her in this case and others,

including recorded comments Defendant Frenchko made at a Trumbull County Commissioners

meeting held on September 8, 2022. See also ECF Nos. 19 and 29. Counsel concluded his

remarks by emphasizing that Defendant Frenchko had adequate notice of the Gag Order’s

minimal restrictions and, nevertheless, purposely violated the Gag Order. Persuasively,

Plaintiff’s counsel opined that Defendant Frenchko’s actions were intentionally designed to taint

the prospective jury pool.

Essentially, special counsel for Defendant Frenchko retorted that Defendant Frenchko

misunderstood the Gag Order, or that the Order was impermissibly vague and violative of her

constitutional right to free, unrestrained speech. Counsel also intoned that as a politician,

Defendant Frenchko’s speech is political and thus protected.

III. Ruling

The Gag Order was born of necessity.8 Trial courts have “an affirmative

constitutional duty to minimize the effects of prejudicial [pretrial] publicity.” Gannett

8 See United States v. Brown, 218 F.3d 415, 423 (5th Cir. 2000) (finding a “gag

order is constitutionally permissible [when] it is based on a reasonably found substantial

Co. DePasquale, 443 U.S. 368, 378 (1979). “Paramount among these dangers is the

potential that pretrial publicity may taint the jury venire, resulting in a jury that is biased

toward one party or another.” Brown 218 F.3d at 423.

“Although litigants do not ‘surrender their First Amendment rights at the courthouse

door,’ those rights may be subordinated to other interests that arise in the context of both civil

and criminal trials. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 n.18 (emphasis added). The

Court is not ignorant of the delicate balance required when issuing an order restraining the

freedom of expression. See United States v. Ford, 830 F.2d 596 (qualifying the court’s use of

over-broad restrictions on speech in connection with litigation). To respect that balance, the

Court imposed an Order that was narrowly tailored and written in easily digestible language

designed to protect the interests of the parties and the public against the prejudicial effects of

pretrial publicity while allowing the Court to fairly administer justice. “In securing freedom of

speech, the Constitution hardly meant to create the right to influence judges or juries.”

Pennekamp v. State of Fla., 328 U.S. 331, 366 (1946) (Frankfurther, J concurring).

In imposing its Gag Order, the Court considered the several pending cases that would be

adversely affected by the comments attributed to Defendant Frenchko. The Court, in

consultation with counsel9, carefully chose language no greater than that essential to preserving

the right to a fair and impartial trial and limited its restrictions to not intrude outside of necessary

boundaries, like the workplace. To provide clear guidance, the Court simply and concisely

instructed the parties not to talk about the case while allowing the parties to proceed with their

likelihood that comments from the lawyers and parties might well taint the jury pool, either

in the present case or [a] related case.”).

9 See 3/28/22 Minutes.

daily work lives. The language of the Gag Order was to be given its ordinary meaning. See

Smith v. United States, 508 U.S. 223, 228 (1993); Perrin v. United States, 444 U.S. 37, 42 (1979)

(noting that courts interpret words in accordance with their ordinary meanings when they are not

defined by statute). The Court thoughtfully chose words that required nothing more than

common sense to be completely understood and obeyed.10 The words of the Gag Order were

selected precisely because they were capable of being understood by those with natural (not

enhanced) intelligence---that is, those capable of the formation of sound judgment, free of

emotional bias. The best evidence of the appropriateness of the words chosen is that none other

than Defendant Frenchko has been alleged to have violated the Gag Order.

The Court rejects Defendant Frenchko’s assertion that the Gag Order is vague or

represents an overbroad restraint on Defendant’s right to free speech. See Affeldt v. Carr, 628 F.

Supp. 1097, 1101 (N.D. Ohio 1985) (noting that gag orders do not violate a party’s free speech

rights so long as there is evidence that the Court finds “imminent prejudice to the administration

of justice”). Importantly, Defendant Frenchko’s role as a politician does not insulate her from

the directives set forth by Orders of the Court. See, e.g., Brown 218 F.3d at 418 (affirming sua

sponte a gag order imposed on a prominent Louisiana politician because the Court found that his

public comments “could interfere with a fair trial”).

10 Societal understanding of the term “common sense” has remained markedly

consistent over time. In 1899, the Century Dictionary Cyclopedia; a Work of Universal

Reference in All Departments of Knowledge with a New Atlas of the World defined

common sense as the faculty in which the various reports of several senses are reduced to

the unity of common apperception. The 1933 Oxford English Dictionary defined common

sense as the endowment of natural intelligence possessed by rational beings. The 1966

Webster's Third New International Dictionary defined it as good sound ordinary sense;

good judgment or prudence. The 2011 American Heritage Dictionary of the English

Language defines common sense as sound judgment not based on specialized knowledge.

In summary, Defendant Frenchko’s behavior, in the face of the Gag Order, has been

irresponsible at best and reckless at worst. Her repeated comments about this and other litigation

could be, as urged by Plaintiff, seen as a violation of the Gag Order.11 Assuming the more

restrained position, at this time, and giving Defendant Frenchko the benefit of being capable of

not having understood the Gag Order without the instruction given at the recently held hearing

and within this writing, the Court admonishes Defendant Frenchko and issues the modified Gag

Order below. This modified Gag Order has, as before, been vetted by counsel and shall serve as

the final warning for all parties and counsel.12 Should further modification be required, counsel

need only ask the Court.

IV. Consequences

A. Breaching the Gag Order

As discussed during the Show Cause hearing, the Court is vested with the authority to

impose appropriate sanctions for any breach of the Gag Order. All parties and counsel are

hereby placed on notice that any violation of the Gag Order, as modified, will draw

consequences. The possible consequences include, but are not limited to, a monetary fine for

each instance in which a party/side or counsel is found to have violated the Gag Order, litigative

consequences such as the dismissal of the complaint or the barring of a party from opposing any

dispositive motions, for example, or imprisonment of the offending party or counsel. See 18

U.S.C. § 401(3).

11 No party shall gain confidence from this liberal conclusion. All parties and

counsel should realize that what began as merely a “prophylactic attempt” to avoid

prejudicing the parties in the above-captioned and related cases will not continue to be

such. Brown 218 F.3d at 431.

12 During the hearing, the Court asked counsel for suggestions on modifications to

the Gag Order.

As it is well known, the Court draws potential jurors from Trumbull, Mahoning, and

Columbiana counties. Should the Court determine that the jury pool has been tainted,

purposefully or otherwise, by a violation of the Gag Order, the Court will relocate the case to a

venue where a fair and impartial jury can be impaneled.13 Should any party/side or counsel

make relocation necessary, the Court will impose additional sanctions upon the offending

party/side or counsel, including, but not limited to, the costs incurred by the Court and other

affected litigants to move the case from the Lambros Courthouse located in Youngstown, Ohio

to any other location.

B. Lacking Decorum

Decorum in court is governed by Orders of the Court, including Local Rules and General

Orders, and the Orders of the undersigned.14 Two matters that occurred at the hearing cause the

Court to draw reminders to the attention of counsel and parties.

Local Rule 83.3 regards dress and behavior in each courthouse within the Northern

District of Ohio. Specifically, that Rule imparts:

Rule 83.3 Courtroom and Courthouse Decorum

(a) No loitering, sleeping, or disorderly conduct is permitted in any Court

buildings.

(b) No food, drink, cards, placards, signs or banners are permitted in any

courtroom or adjoining areas, except as permitted by the Court.

13 Despite Defendant’s claims to the contrary, the right to an impartial jury in civil

matters is inherently preserved in the right to trial by jury under the Seventh Amendment.

See McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981) (“The right to an impartial jury

in civil cases is inherent in the Seventh Amendment's preservation of a ‘right to trial by

jury’ and the Fifth Amendment's guarantee that ‘no person shall be denied of life, liberty

or property without due process of law.’”).

14 See Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (“[T]he presiding judge

is charged with the responsibility of maintaining proper order and decorum. In carrying

out this responsibility, the judge must ensure ‘that [the] courthouse is a place in which

rational reflection and disinterested judgment will not be disrupted.’”).

The prohibition against “signs” includes messages worn on face masks. While masks are

required, they shall broadcast no message.

Additionally, the Court operates pursuant to various Orders issued by the Chief Judge of

the Northern District of Ohio known as General Orders. The General Order of the Court dated

April 5, 2022, states:

[u]pon entering courtrooms, judges’ chambers and offices, or any space where a

court proceeding is being conducted, all persons must comply with the rules and

requirements of the presiding judge regarding face coverings.

The undersigned requires face masks during hearings and the parties and counsel were so

informed by Court personnel. At the hearing, all present complied with the General Order

except Defendant Frenchko who, just as the hearing was scheduled to begin, alleged a “medical

exemption.” When questioned, defense counsel emailed an unsigned and undated document to

the Court’s staff purportedly issued to Defendant Frenchko. Assuming without deciding the

validity of Defendant Frenchko’s medical condition or exemption, and, despite the defense’s

failure to give timely notice of any health concerns, the Court delayed the substantive start of the

hearing and arranged for Defendant Frenchko to attend electronically from a witness room a few

feet from the Courtroom. Although collectively counsel had indicated early on in the hearing

that neither side intended to call witnesses, including Defendant Frenchko, the record reflects

that defense counsel had full access to their client.

Counsel are hereby on notice that, absent some unforeseen circumstance, any further

accommodations shall be sought sufficiently in advance of its requirement—that is not less than

48 hours before any appearance before the Court, and appropriately justified.

V. Modified Gag Order

The Court hereby orders all parties and counsel to cease and desist from making

comment, either directly or indirectly, disseminated by any means, including but not limited to

press, radio, and social media outlets, regarding matters concerning the above-referenced case.

Parties may engage in appropriate workplace communications that do not regard this litigation.

The parties may refer interested persons to the docket for matters publicly available or to their

counsel.

IT IS SO ORDERED.

September 19, 2022 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge