Opposition Brief — Miller-Wagenknecht v. City of Munroe Falls

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‘fl Supreme Court, US.

Sf FILED

No. 02-79 AUG16 2002

OFpic * OF THE CLERK

Jn The ! soem

Supreme Court of the Anited States

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JACQUELINE J. MILLER-WAGENKNECHT,

Petitioner,

V.

CITY OF MUNROE FALLS AND BETTE LYONS,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Ohio

4

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITIONER’S WRIT OF CERTIORARI

+

JOHN T. MCLANDRICH AMIE L. BRUGGEMAN, Esq.

Counsel of Record Law Director for City of

PAUL J. CRISTALLO Munroe Falls

MAZANEC, RASKIN & RYDER 43 Munroe Falls Avenue

Co., L.P.A. Munroe Falls, Ohio 44262

100 Franklin’s Row

34305 Solon Road

Cleveland, Ohio 44139

(440) 248-7906

Counsel for Respondents

City of Munroe Falls

and Bette Lyons, in her

official capacity

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

$$.

QUESTIONS PRESENTED

Petitioner Jacqueline Miller-Wagenknecht is a tax

protester who failed to timely file tax returns with the City

of Munroe Falls for tax years 1994 and 1995. Regarding

her failure to pay taxes for 1994, the proceedings against

Ms. Miller-Wagenknecht resulted in a plea agreement

whereby Ms. Wagenknecht agreed to pay taxes to the City

of Munroe Falls. Petitioner then failed to timely pay her

1995 Munroe Falls taxes. The subsequent prosecution

ended with Ms. Miller-Wagenknecht being found not

guilty. Thereafter, Ms. Miller-Wagenknecht brought suit

against City of Munroe Falls and the City’s Tax Adminis-

trator, Ms. Bette Lyons, for malicious prosecution, abuse of

process and equal protection violations. A unanimous jury

found the Respondents not liable on all of Petitioner’s

claims. -

The Petitioner raises the following issues:

I. Whether a tax administrator or a municipal en-

tity is guilty of malicious prosecution, abuse of

process and equal protection violations when

they institute proceedings against an individual

for failing to pay her taxes in light of the facts

that, a) the individual filled out city forms indi-

cating she is a resident of the municipality; b)

the municipality sent repeated correspondence to

the individual requesting that she pay her local

taxes and/or respond to inquiry; c) the individual

indicates she is not going to pay her taxes and to

“talk to my lawyer;” and d) the individual enters

into a plea agreement whereby she agrees to pay

taxes to the local municipality and then fails to

timely pay her taxes the following year.

li

QUESTIONS PRESENTED - Continued

II. Whether the trial court erred when it instructed

_ the jury on the applicable law for malicious

prosecution and probable cause.

. Whether a general denial in an answer, which is

not recanted but is later established, can be the

basis for judgment against a civil defendant, and

further, if said issue can be raised for the first

time on appeal at the state Supreme Court level.

ili

TABLE OF CONTENTS

Page

Questions Presented...............::ssseseesessesserreeeeeeeeeeeees i

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Te OE AMEGEITIOS 00... 0ssescresevesssesvescesesssncecesessosesees iv

Statement of the Case ................scccsseseeccseereeeeeeeeeseees 1

I. Clarification of the Record ..............:ccccccceeeee

Reasons for Denying the WTrit...............:.ccesseeseeeeeeeees 3

I. Petitioner has not articulated a compelling

reason to justify discretionary review by this

es , ccaccnataenmnienlerhiseenannenbesenianeuies 3

A. Petitioner confuses a plaintiff’s burden

of proof in a civil malicious prosecution

case with a Prosecutor’s burden of proof

in a criminal proceeding..............csseseeeeees 3

B. The Court did not err in its charge to the

jury regarding the applicable law of ma-

licious prosecution and probable cause... 6

C. Petitioner’s proposition that a failure to

recant a general denial which is subse-

quently established by the trial court enti-

tles a plaintiff to judgment iserroneous.... 8

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TABLE OF AUTHORITIES

Page

CASES

Bostic v. Connor, 37 Ohio St. 3d 144, 524 N.E. 2d

DE Ce siisiseicecnsinnitiiaieisieisitciibctaiecintiaiiatiinisceibediaasiniAiniatclati 8

Bryan v. United States, 524 U.S. 184, 118 S.Ct.

SO, BE Bice Be ee I viretensncennsesnnanniensanticecinnnss 4

Carruba v. Transit Casualty Co., 443 F.2d 260 (6th

Se Fe a cinch netptieaccecascctuntessanntasidab esac elaraneannen 7

Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604,

ph oh Re fk. |. RR pone 3, 4, 5, 6, 7

Cleveland Electric Illuminating Co. v. Astorhurst

Land Co., 18 Ohio St. 3d 268, 480 N.E. 2d 794

fier evccacerceclodeecheoiecenibciatLacesirabin oiacaiepsedtstieaieticaatali actA latisethanidnionlen 7

Grandsky v. Sperry Rand Corp., 489 F.2d 502 (6th

CAINE, ID wich cscscscescsienitig celmantibacsaenaiaeiamntnaainaaaiatntaausiaeeiniaine 7

In re: Terence J. Meyers, 196 F.3d 622 (6th Cir.

oi Latin tickcaheechene a phaeeinivetdivinaacmadaain tan dilinaaetimeiinie 4

Ohio Farmer’s Ins. Co. v. Cochran, 104 Ohio St.

TE, ee ee Ie I icilaepatcctetincceaniiactndienaaccinbinnincinio 7

Pergola v. Pennsylvania Road Company, 311 F.2d

ee Ce ny I ican a deeaea panda bacco nidb daddteceecteananenn 6

Perry v. Adjustable Awning, Inc., 117 Ohio App.

486, 192 N.E. 2d 672 (9th Dist. 1962)...................ccsssseees 6

Reichert v. Ingersoll, 18 Ohio St. 3d 220, 480 N.E.

I a haha ekccisiinacheseainistiate tha eiiapiemaaaniasiaiaseindieeaabioies 7

Saucier v. Katz, 121 S.Ct. 2151, 533 U.S. 194, 150

Ss ee ee ED inns cciscscsnclenanicsisinpnceninoscgncenaineaunnnbeieiingsiis 5

v. General Motors Corp., 53 Ohio St. 3d

TABLE OF AUTHORITIES -— Continued

Page

Wagenheim v. Alexander Grant & Co., 19 Ohio App.

3d 7, 482 N.E. 2d 955 (10th Dist.1983)...............eeeereees 7

Walczesky v. Horvits Co., 26 Ohio St. 2d 146, 269

PETE; Bek BOG CIF Bhs recciscscccncenccessnscssctivsetenivnetsbienbaistateriim 7

RUL=

Supreme Court Rule 10 ....................cvvcsssssscsrsssssseerersssseees 3

1

RESPONDENTS CITY OF MUNROE FALLS AND

BETTE LYONS’ BRIEF IN OPPOSITION TO

JACQUELINE MILLER-WAGENKNECT’S

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

The Court of Appeals for the Ninth Judicial District

accurately set forth the pertinent facts related to Miller-

Wagenknecht’s claims. [Pet., App. C, pp. 22-40.] Briefly

stated, this case involves Miller-Wagenknecht’s failure to

pay taxes to City of Munroe Falls for tax years 1994 and

1995. Following Petitioner’s 1994 prosecution, which

resulted in a plea agreement, and following Petitioner’s

1995 prosecution, which resulted in a finding of not guilty,

Petitioner filed her civil suit alleging malicious prosecu-

tion, abuse of process and equal protection violations. The

trial resulted in an unanimous jury finding in favor of the

Respandents on all counts.

I. CLARIFICATION OF THE RECORD

Petitioner incorrectly indicates that this case arises

out of her “efforts to comply” with local tax laws. Similar

to Petitioner’s decision to ignore her obligation to pay

taxes, Petitioner’s statement of the case ignores the fact

that she was repeatedly mailed letters indicating her need

to pay taxes to the City of Munroe Falls. [Pet., App. C, PP.

23-24, 28-29.] Petitioner also failed to include that follow-

ing her failure to pay local taxes for 1994, she entered into

a plea bargain whereby she acknowledged her require-

ment to pay local taxes. [Pet., App. C, pp. 23-24, 28-29.]

Also, while Petitioner acknowledges that she sent a

request for an extension to file her tax returns for the tax

year 1995, she fails to include the fact that her request for

an extension was untimely and did not have the proper

attachments. [Pet., App. C, pp. 23-24, 28-29.] Indeed,

following these attempts to have Petitioner pay her taxes,

the Respondent City of Munroe Falls made further at-

tempts to contact her regarding her tax delinquency for

the second year in a row. [Pet., App. C, pp. 23-24, 28-29. ]

The evidence before the trial court demonstrated that

following Petitioner’s second annual failure to timely pay

taxes, she refused to respond to inquiry by the City of

Munroe Falls and its Tax Administrator, Ms. Bette Lyons.

[Pet., App. C, pp. 23-24, 28-29.]

Petitioner also states that her “good faith belief” that

she did not have to pay City of Munroe Falls taxes was

based on the fact that she was not “domiciled” in Munroe

Falls. The record below belies Petitioner’s assertion. It is

admitted that Petitioner purchased a home at 174 Chel-

tenham Lane in the City of Munroe Falls on August 31,

1994. On September 28, 1994, Petitioner executed a water

contract with the City of Munroe Falls for her residence.

On October 30, 1994, Petitioner submitted a Residence

Information Sheet with the Income Tax Department for

the City of Munroe Falls stating that she started residency

in the City of Munroe Falls on October 10, 1994. [Pet.,

App. C, pp. 23-24, 28-29.]

It is, however, worth pointing out that Petitioner

makes reference to the fact that she told the City of

Munroe Falls that she was not going to pay taxes based on

her belief that she was not required to file Munroe Falls

taxes, and further, that if the City of Munroe Falls had

additional questions, they could talk with her attorney.

[Pet. 4.]

a2

3

REASONS FOR DENYING THE WRIT

I. PETITIONER HAS NOT ARTICULATED A

COMPELLING REASON TO JUSTIFY DIS-

CRETIONARY REVIEW BY THIS COURT.

“Review on a writ of certiorari is not a matter of right,

but of judicial discretion.” Sup. Ct. R. 10. “A petition for a

writ of certiorari will be granted only for compelling

reasons.” Jd. Petitioner has not presented any compelling

reason for this Court to exercise discretionary jurisdiction

over her appeal to this Court.

A. PETITIONER CONFUSES A PLAINTIFF’S

BURDEN OF PROOF IN A CIVIL MALI-

CIOUS PROSECUTION CASE WITH THE

PROSECUTOR’S BURDEN OF PROOF IN

A CRIMINAL PROCEEDING.

The thrust of Petitioner’s argument for this Court to

accept jurisdiction is that pursuant to Cheek v. United

States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed. 2d 617

(1991), the government may not prosecute citizens for

failure to pay their taxes where that failure was not

intentional, but rather, arose from a genuine misunder-

standing of a tax provision. Since 1991, tax protestors

have sought to construe Cheek as standing for the princi-

pal that the government must establish a taxpayer will-

fully failed to pay her taxes before instituting criminal

proceedings. Respondents submit that Cheek does not

stand for this principle.

As argued below, the Cheek case involved a crimi-

nal/federal tax prosecution. Specifically at issue was the

interpretation of the word “willful” as it appeared in the

a

4

federal tax code. This Court determined that the defen-

dant in Cheek was entitled to a jury instruction at his

criminal trial regarding his good faith belief in failing to

file or pay his taxes. Id. The Cheek case does not have

blanket applicability to all “failure to file or pay taxes”

cases in the criminal or civil context.

Importantly, this Court has limited the applicability of

Cheek. In Bryan v. United States, 524 U.S. 184, 118 S.Ct.

1939, 141 L.Ed. 2d 197 (1998), this Court distinguished

the “willful” analysis of Cheek based on the fact that the

Cheek prosecution involved “highly technical statutes that

presented the danger of ensnaring individuals engaged in

apparently innocent conduct.” Moreover, the interpreta-

tion of the term “willful” applies expressly to provisions of

the U. S. tax code. Other Courts have similarly limited

Cheek to its facts. (See, e.g. In re: Terence J. Meyers, 196

F.3d 622 (6th Cir. 1999), distinguishing Cheek and finding

that the lower court properly granted summary judgment.

The Court dismissed plaintiff-appellant’s arguments that

he did not honestly believe he needed to pay taxes.)

The matter before this Court does not involve the U.S.

tax code, but rather, the City of Munroe Falls tax ordi-

nance. The Munroe Falls tax ordinance is not a “highly

technical” tax provision. Indeed, the tax ordinance for the

City of Munroe Falls is very straight forward. Munroe

Falls Ordinance Section 181.99(A)(1) and (11) provides:

“Any person who * * * (f)ails, neglects or refuses to make

any return or declaration required by this Chapter * * *

shall be guilty of a misdemeanor.” Munroe Falls Ordinance

181.05 requires each taxpayer to file a return on or before

April 30 for the previous tax year. Accordingly the Cheek

case is simply inapplicable.

ae eae

5

Petitioner moved to the City of Munroe Falls and

co submitted various forms acknowledging her residency.

Petitioner then simply sought to avoid paying taxes by

: declaring that she was not “domiciled” in Munroe Falls

| and, therefore, was not going to pay any local taxes.

Following a plea agreement arising out of her failure to

pay taxes for the tax year 1994, Petitioner again failed to

pay her Munroe Falls taxes for tax year 1995.

Assuming arguendo the rationale in Cheek had some

applicability to the matter at issue, Cheek sets forth the

requisite standards for a criminal prosecution and the

matter herein is civil. To prevail on a claim of malicious

prosecution in the state of Ohio, a plaintiff must provide

evidence of each element of malicious prosecution: (1)

malice in instituting or continuing the prosecution; (2) lack

of probable cause; and (3) termination of the prosecution

in favor of the accused. Trussell v. General Motors Corp.,

53 Ohio St. 3d 142, 559 N.E. 2d 732 (1990). Here, Peti-

| tioner focuses on the City’s failure to prove her intent

| regarding her failure to pay local taxes. Throughout this

lawsuit, Petitioner has confused the burden necessary to

sustain a conviction for tax evasion with plaintiff’s burden

to prevail in a malicious prosecution claim.

ee

“Probable cause” is an analysis of the arresting party’s

reasonable belief, considering the facts and circumstances

known to them at that time, as to the guilt of the party to

be charged. Saucier v. Katz, 121 S.Ct. 2151, 533 U.S. 194,

150 L.Ed. 2d 272 (2001). Accordingly, a person instituting

criminal proceedings need not have evidence which estab-

lishes a criminal defendant’s guilt beyond a reasonable

doubt prior to bringing those charges; rather, the charging

party merely needs a reasonable belief based on the facts

and circumstances presented at that time. Jd. Accordingly,

6

in Ohio, a plaintiff in a malicious prosecution claim must

prove raore than his or her acquittal, he or she must prove

malice and a lack of probable cause. Pergola v. Pennsyl-

vania Road Company, 311 F.2d 837, 838 (6th Cir. 1963).

Yet no action for malicious prosecution will lie if probable

cause to arrest and prosecute exists, even when express

malice is proved. Perry v. Adjustable Awning, Inc., 117

Ohio App. 486, 487, 192 N.E. 2d 672 (9th Dist. 1962).

It is undisputed that .Petitioner failed to respond to

Respondents’ repeated inquiries and attempts to have

Petitioner pay her local taxes. It is also undisputed that

Petitioner entered into a plea agreement whereby she

agreed to pay Munroe Falls taxes. When considering

Petitioner’s conduct in light of the express terms of the

Munroe Falls tax ordinance, probable cause existed to

charge Petitioner with failing to pay her taxes. Indeed,

assuming arguendo Cheek v. United States, supra, is

applicable to this matter, the Petitioner’s admitted conduct

ev:dences she willfully failed to pay her taxes.

B. THE COURT DID NOT ERR IN ITS

CHARGE TO THE JURY REGARDING

THE APPLICABLE LAW OF MALICIOUS

PROSECUTION AND PROBABLE CAUSE.

Petitioner’s second argument in support of jurisdiction

fails as it is dependent upon the flawed reasoning of

Petitioner’s first argument. Petitioner wrongly asserts

that Respondents needed to establish her intent, or “will-

fulness,” in failing to pay her taxes prior to the institution

of criminal proceedings. Based upon this incorrect prem-

ise, Petitioner alleges that the trial court erred when it

failed to give the jury a corresponding instruction on

Respondents’ failure to establish Petitioner’s intent or

“willfulness” in failing to pay her taxes. ~

As stated above, Cheek, supra, simply does not stand

for the principle that state and local officials need to

establish an individual’s intent to not pay taxes prior to

instituting criminal proceedings. Accordingly, the trial

court did not err in giving Petitioner’s erroneous instruc-

tion.

In Ohio, the standard on appeal for a court’s charge to

the jury is whether the charge, taken as a whole, fairly

and accurately submits the issues and applicable law to

the jury. Grandsky v. Sperry Rand Corp., 489 F.2d 502,

503-504 (6th Cir. 1973). Indeed, a jury charge must be

considered as a whole, and a reviewing court must deter-

mine whether the jury charge misled the jury in a matter

materially affecting the complaining partys substantial

rights. Okio Farmer’s Ins. Co. v. Cochran, 104 Ohio St.

427, 135 N.E. 537 (1922), paragraph six of the syllabus;

Wagenheim v. Alexander Grant & Co., 19 Ohio App. 3d 7,

482 N.E. 2d 955 (10th Dist. 1983). A judge does not commit

error because he or she fails to use language contained in

a request, so long as the instruction given is accurate and

sufficient. Carruba v. Transit Casualty Co., 443 F.2d 260,

264 (6th Cir. 1971). A failure to give a proposed jury

instruction is subject to a “plain error” review. Reichert v.

Ingersoll, 18 Ohio St. 3d 220, 480 N.E. 2d 802 (1985). The

plain error doctrine is used in civil matters only under

exceptional circumstances to prevent a manifest miscar-

riage of justice. Id.; see also, Cleveland Electric Illuminat-

ing Co. v. Astorhurst Land Co., 18 Ohio St. 3d 268, 275,

480 N.E. 2d 794 (1985). Lastly, a trial court can properly

reject proposed jury instructions it considers confusing.

Walczesky v. Horvitz Co., 26 Ohio St. 2d 146, 151, 269 N.E.

8

2d 844 (1971). A trial court can also reject an instruction

if, within its discretion, it feels the instruction is redun-

dant or immaterial. Bostic v. Connor, 37 Ohio St. 3d 144,

524 N.E. 2d 881 (1988).

In the matter at issue, the trial court’s jury instruc-

tions, taken as a whole, accurately set forth the controlling

law on the applicable issues, including malicious prosecu-

tion and probable cause.

The trial court properly instructed the jury as to

probable cause and malicious prosecution. [Pet., App. C,

pp. 26-27.] As stated by the Court of Appeals for the Ninth

Judicial District, “Although willfulness must be shown in

a criminal case, to prove malicious prosecution in a civil

case all that is needed is to show probable cause for the

offense. The trial court need not discuss the final points of

mens rea.” [Pet., App. C, p. 26.]

A unanimous jury found that probable cause existed to

charge Petitioner with failure to pay her taxes, and accord-

ingly, no error occurred. This Honorable Court need not

exercise jurisdiction over Petitioner’s Writ.

C. PETITIONER’S PROPOSITION THAT A

FAILURE TO RECANT A GENERAL DE-

NIAL WHICH IS SUBSEQUENTLY ES-

TABLISHED BY THE TRIAL COURT EN-

TITLES A PLAINTIFF TO JUDGMENT IS

ERRONEOUS.

As an initial matter, Respondents request this Court

not exercise jurisdiction over this matter based on the fact

that Petitioner’s third assertion, as set forth above, was

not raised until briefs were submitted to the Ohio Su-

preme Court.

9

Second, Petitioner’s argument that a general denial to

a claim, which is eventually established, must result in

judgment for plaintiffs is unsupported by the common law

and the civil rules. Respondents submit that a rule

whereby an “unrecanted,” general denial results in judg-

ment for plaintiff would be a drastic and unnecessary

alteration of the civil rules. Accordingly, as Petitioner cites

no precedent or rationale for her position, Respondents

submit that this Court need not exercise jurisdiction to

entertain such matters.

ee

Vv

CONCLUSION

For all the foregoing reasons, Respondents respect-

fully request that this Honorable Court deny the Petition

for Writ of Certiorari.

Respectfully submitted,

JOHN T. MCLANDRICH

Counsel of Record

PAUL J. CRISTALLO

MAZANEC, RASKIN & RYDER

Co., L.P.A.

100 Franklin’s Row

34305 Solon Road

Cleveland, Ohio 44139

(440) 248-7906

Counsel for Respondents

City of Munroe Falls and

Bette Lyons, in her official

capacity