Judge Richard C. Pfeiffer, Jr. and the City of Columbus vs. the Fireman:
Dubious Ethics and Intimidation Don't Always Work

Overview. In October of 1972, at age 29, I joined the Columbus Fire Department as a firefighter. In 1979 I was promoted to lieutenant, in 1981 captain, in 1984 battalion chief, and in 1991 I was promoted to assistant chief, the highest position one can achieve through competetive testing. I retired after 29 years of service in 2001. During the 29 years I worked with some of the finest people I know in one of the most rewarding jobs one could have.
        But, when you reach the top of the fire division, outside forces, the elected officials, frequently intervene and politics rears its ugly head. Thus this sordid story.
        On October 13, 1999, the City of Columbus, Ohio filed a civil suit against me alleging a zoning code violation at a commercial property I had owned for 35 years. But the circumstances strongly suggest that they filed it because of my position as an Assistant Fire Chief of the Columbus Fire Department. The charge, which seems to have been manufactured, drug on for over a year and seven court appearances before the judge reluctantly found in my favor.
        Along the way far more questions were raised than answered. Why was the suit filed? Why did the zoning code inspector, who signed and delivered the violation, not only deny writing the order, but state that he had observed no violations at the property? Why didn't the city produce any evidence to support their charge? Why did the judge tell the city they could present evidence at a future hearing even though both sides had rested? Why did the judge then call for a "Evidentiary Hearing" two months after the trial concluded? Why did the judge let the case drag on and on? Was the judge's primary objective protecting his political future, with objective decisions being secondary?
        Did my role as a fire chief ordering correction of a serious fire code violation in the downtown Columbus state capitol building play any part in the suit? Readers are left to form their own opinion.


 

       Ths saga started in June of 1964 when my wife and I purchased a property on East Whittier Street in Columbus, zoned commercial 4 (C-4), and on the property the following month established a automobile repair shop. The property and property use was in full compliance with all Columbus zoning codes.
        I operated the business continuously from July 1964 until March 1983, with the same property use, a nonconforming (but legal) single family house and a code defined (and legal) "garage repair shop." (From 1972 to 1983 I operated the auto repair shop on my fire department off days.) In 1983 I sold the auto repair business but retained the property and leased it out for the same use.
        In mid February 1998 a city code enforcement officer, with no forewarning, proclaimed the Whittier St. garage repair shop to be in violation of the Columbus City Zoning Code. The inspector had issued a written order that declared it an "illegal operation" and ordered our tenant to "cease use." (The officer would later, under oath at the trial, state that he did not write the order and that he had observed no code violations at the property! More about this later.)
        My response was brief and to the point. The garage repair shop was in compliance with all of the applicable city codes when it was legally established in 1964. It had been in continuous use for 34 years, 15 years before the "certificate of zoning clearance" became law in 1979 and was therefore "grandfathered" legal.

        After receiving the order I called Kathy Kerr, the Deputy Director of the City of Columbus Trade and Development Department, whose responsibilities included zoning. As an assistant fire chief in the Columbus Fire Department, I had professional dealings with her when they were under fire from the state for their many problems involving building permits and completing inspections. I was sure a brief face to face meeting would quickly resolve any perceived problem. I was wrong.
        I found Kerr ill at ease, far different from the person who asked me to change fire department procedures a few months earlier in a meeting at my office. She had her inspections supervisor, Janine Aeh, whom she inferred was an expert, attend the meeting. Some unknown person had decided that our commercial rental property on Whittier St. was in violation of a 1979 law that required one to get a "certificate of zoning clearance" before using the property as a "garage repair shop."
        I don't believe I had ever met Aeh before as I am sure I would have remembered her. Obnoxiously, she talked continually, interrupting with her opinions which she stated as "the code" and continually displaying her lack of knowledge. Surprisingly to me, Kerr let her continue her monologue. Aeh had determined that I would have to apply to the city council for a variance. Tauntingly, she said that certainly I knew people there so I would have no problem.
         This was the building/zoning department that, with a few exceptions, I had always known; rude, inconsiderate, condescending and self-righteous. But I held hope that a city the size of Columbus had a knowledgeable person somewhere in the zoning department whom Kerr would contact for guidance. I suspected that they rolled over people all the time - but not me.

       A week later, probably the response to the meeting, I received a letter from a the same code enforcement officer that concluded in bold all capital letters the warning that "CONTINUED NON-COMPLIANCE MAY EXPOSE ANY PERSON WITH RESPONSIBILITY FOR THIS PROPERTY TO CIVIL OR CRIMINAL PROSECUTION OR BOTH." Shortly after that Aeh told me that within a week criminal charges would be filed against me.
        Although we were not intimidated by the threat of legal action, there is a big problem with the system. Even if you are right, if you win a court case but have to pay an attorney thousands of dollars, did you really win? No doubt the zoning people know and actively take advantage of this.
        I did have some knowledge and experience of how the legal system worked, or at least how it was supposed to work, and knew of the many resources at the law library and how to use them. We determined that we would defend ourselves if it came to that.
        Although a major tactical blunder for the city, it was fortunate for us that the zoning people gave us plenty of warning as it was twenty months before they actually filed the charge against us. Because representing ourselves would be a vast project, we might have come up short of time had they filed the case when they first threatened to. Immediately after the February 1998 threats we went to work using the intervening time for our education and research.
        We gathered and organized information on our computer. In addition to the law library and the records room at City Hall, we found considerable information available on the Internet. Before long we had all of the court rules and procedures as well as the rules of evidence, the Columbus City Codes and the Ohio Revised Code, available at the touch of a few buttons.

        We decided that if they were really foolish enough to file this frivolous case against, we would seek redress in the form of a countersuit for this arrogant and gross abuse of our rights.
        Fast forward 20 months. On October 13, 1999, four months after assistant city attorney Patsy Thomas first said the charges would be "filed in two weeks," she finally filed them. She appeared to be holding the case for a higher-up approval. To her credit, as I requested, she did call me on the 13th saying the charges were being filed.
        With the arrival of the certified letter from the Franklin County Municipal Court, Environmental Division, we got the first look at our alleged transgressions of the law. Not only was the "complaint" written very ambiguously but in the same envelop was a signed "ORDER" from the judge, Richard C. Pfeiffer, Jr., saying that, "The Court, having reviewed the pleadings, finds good cause to support the hearing request. Accordingly, the request is hereby granted," and the date was set.
        Hearing request date set? The judge had signed the city's order for " . . . an evidentiary hearing on (the) Plaintiff's motion for (a) preliminary and permanent injunction at 2:30 P.M. on November 18." The concluding sentence was, "The Defendants, John E. Rees and Carol Ann Rees, are ORDERED (Court's emphasis) to appear for this hearing prepared to present all defenses they may have (my emphasis) to the Plaintiff's claims."

       Certainly they couldn't do this. There was no way we could possibly be, " . . . prepared to present all defenses they may have." With the three-day grace period I had until November 18th, the hearing date, to file my answer and our countersuit. I thought I knew enough about court procedure to think that I was entitled to a period of discovery and reasonable time to prepare our defense.
        I prepared two motions. The first was to ask the Court to require the City to remove the all-encompassing language from their complaint. In addition to not having the Certificate of Zoning Clearance, they were charging us with violation of "other code provisions" and "not complying with the City of Columbus' Zoning Codes." Defending against the Certificate of Zoning Clearance code was a no-brainer, but taking on the entire Zoning Code as it existed in 1964 would be a formidable task, even for an experienced attorney.
        I filed the motion on the following Monday, October 18, 1999, asking the judge to require them to list each and every violation they determined that we were in violation of.
        The following day I sent my first interrogatories to Thomas. Following the directions from the law library references, I gave specific detailed instructions for answering. The 24 questions were an attempt to find out just what information they had and what prompted their filing against us so we could develop our case.
        I filed our second motion on Friday, October 22nd, requesting a delay in the trial date so we could put the order of events in sync with the court rules and prepare our defense. It was titled as a Motion for Continuance. Even though I wanted more time, I only asked for two additional months so as not to alienate the Court. I cited the reason for the request as needing time to conduct discovery.
        On November 3rd, two weeks early, I filed our Answer and Counterclaim (read our Answer and Counterclaim ). Much study, research and work had gone into this document. Most of the counterclaim was based on the many relevant cases I had researched.
        In a paper filed the following day, Judge Richard C. Pfeiffer, Jr. mercilessly shot back. Pfeiffer, whose came from eight years as a state senator before becoming a judge, issued a terse three sentence response that said our Motion for Continuance was DENIED and that the Plaintiff's motion for preliminary and permanent injunctive relief would go forward. The concluding sentence in all capital letters was, "IT IS SO ORDERED."
        We couldn't believe it. We were not only dealing with what we deemed to be bunch of incompetent people at the Trade and Development Department but now it looked like we were going to a kangaroo court.
        This was an impossible situation. Of course we knew that many, if not most, attorneys resent people who represent themselves. I suspect the same is true with the same percentage of judges. Did this play a role? If I were paying an attorney would he have received the same treatment?
        I remembered 20 years earlier when my sons were growing up, every Friday night we made a bowl of popcorn and watched the
Dukes of Hazzard. It was a silly show with plenty of car racing action and a spoof on the legal system and the local autocratic politicians. I saw a parallel here, with Pfeiffer playing the lead role.
        Try as we might, we could find no reasonable explanation for what might have motivated Pfeiffer to so emphatically dismiss such a reasonable request. All of the possible scenarios looked bad for us. It simply was not possible for us to prepare and present our case on November 18th.
        Back to the Internet where I downloaded the Rules of the Appellate Court. I also continued to go to the law library about every day. But now, instead of preparing our case, I was looking at what I would have to do to preserve our right to appeal. There seemed to be plenty of grounds if the judge went through with what he had so emphatically said. More notes - more paper - another binder of rules. Things were getting complicated.

        November 18th court day. As we were to find out, in all eight of our court appearances, our case was never called at the appointed time. Was it part of some intimidation factor, or just another disregard and disrespect of the mere mortals who find themselves there? Probably mostly the latter.
        The court appearance did not turn out to be the whitewash we feared. Early on the judge said it would not be an evidentiary hearing. He had put us through all of the additional stress for nothing. As things developed, I was beginning to think that the matter might even be resolved before we left. And it would have except that the city's attorney, Patsy Thomas, would not admit that the property use went back to 1964, a pivotal point that she would later stipulate as fact (yes, stipulate as fact!) during the trial.
        Our motion to clarify the charge was approved. We left feeling elated in the fact that the charge against us was taken from very ambiguous to very specific so now we at least knew what to prepare for. Unbelievably the city was still saying that we were guilty of not complying with the 1979 law and the judge made it clear that only that specific charge was being alleged as our violation. We didn't realize that Pfeiffer would let the city, over our objections, randomly jump to various parts of the zoning code during the trial, all with no forewarning to us.
        Our second court appearance was on December 22nd. Our thrust was to gather information, the discovery phase of the process. It quickly became apparent to us that the judge was going to block us at every opportunity as he said that he would not permit us to gather information for our counterclaim unless and until we "prevailed" on the City's claim. We were denied the right to find out anything about the circumstances of what prompted the case and who was behind it; who did what and when and why.
        The city started a pattern of randomly bring up words in the code that inferred we might be guilty of some other infraction. Thomas found a phrase that said a "board of adjustment" could approve certain uses and tried to apply it to our situation. The judge jumped right on the out-of-context phrase, even making a little speech saying how the onus had shifted to us. They didn't have to prove we were wrong - we had to prove we were right. Pfeiffer frequently seemed to make the impulsive and emotional decisions of "Judge Judy" sans the hollering and screaming. It was a product of our many hours of research that showed phrase's origin went clear back the original 1923 zoning code and how it was now meaningless (In somewhat of a retraction, Pfeiffer spent time in a later court appearance trying to explain to Thomas how it did not apply to us. She never did appear to understand). (Thomas ran for a Franklin County Municipal Court judgeship in November, 2002, and again in November, 2007, but was soundly defeated both times. Was/is she qualified? Click here to find out more about her legal expertise before you decide.)

       Pfeiffer set the next hearing for February 17, 2000 and said among other things that, "Hopefully it will be determined at that time that all discovery has been completed relative to the Plaintiff's claim." We were the only ones who were trying to conduct discovery. Thomas, who seemed to be wondering aimlessly, did not even start her discovery until more than three months later. Again we wondered, what if we had done that. Would Pfeiffer have let us get away with that?

        Because the plaintiff was also my employer and because of a job related controversy I had been involved in, there was a significant possibility that city officials up to and including the mayor may have played some part in the case as some sort of retribution. As part of our discovery we had asked to see, "Copies of all e-mail that makes any reference whatsoever to John E. Rees, or this Franklin County Municipal Court action, or the defendants property at 613 E. Whittier St., that were sent to or received by any of the following: Gregory Lashutka (the mayor), Richard Browning (the mayor's chief of staff), Thomas W. Rice (the safety director), and also any other aide, assistant, deputy or secretary to each named person." Thomas refused the request so we filed a motion to force her to supply the information. The request seemed simple; we wanted to see only the documents that pertained to us or our property - nothing else.

        On February 17, 2000, our third court appearance, the judge denied our request to examine the requested documents because he determined they were for our counterclaim. However, he did say in his written Entry that, "If plaintiff does not prevail on its claim, then prior to the counterclaim hearing defendants may engage in further discovery." We took him at his word and made no further issue of this, never suspecting he would later renege.

       There were four phone conference calls over a four-week period, starting on March 13th, always at 8:00 A.M. The discussions included stipulations, witness list, and other matters. They did save additional court appearances. At the fourth and final conference call, on Monday, April 10th, the trial date was set for June 19, 2000 at 1:30 P.M.        

The trial

        The trial portion of the saga convened on June 19th at 1:30 P.M. In addition to my books, outline, and physical evidence, and digital camera, I took my small tape recorder. It would be a lot easier to listen to the proceedings later rather than trust my memory or purchase an expensive transcript if the need arose. I set them in on the table front of me but made sure I wasn't overly occupied with them and that they were not a distraction.

        Four monthes earlier, at the conclusion of our third court appearance, the judge asked if there were any other matters to discuss. Having a 40 plus year hobby of photography, I asked him if taking pictures in the courtroom was permitted. For some reason unknown to us, his answer went far beyond the request. Condescendingly and gesturing to the back corner of the courtroom, he said he didn't care if I set up a large video camera with sound recording in the back of the room to record everything. Now I was the rational voice when I said that I didn't really want to do all of that but just, unobtrusively, get a few pictures. Again, we took him at his word, never suspecting he would later renege on this too. Thomas made no comments and the session ended.
        Within a few minutes of the start of the trial, Thomas spoke up and said, "Your honor, I just notice out the side of my eye that Mr. Rees is taking pictures (the picture shows her looking directly at the camera, which never left the table)." The judge immediately jumped on me saying, "Are you doing that?" I was incredulous. Of course I was.
        I respectfully reminded him that I had inquired about permission to take pictures at the last hearing and that he even went so far as to say that I could put up a video camera if I wanted. He had obviously forgotten about the exchange and now, after making another impulsive decision, his ego was on the line. He had to either admit he was wrong or shift his memory lapse to me.
        With only a short hesitation, he said I did not follow proper procedure. Proper procedure? Was there not a request made and permission granted? Was there any reference to a procedure? Was I referred to someone else? A form? A memo to write? Was there some higher authority to ask? No, nothing. But I knew enough not to argue with a judge in HIS courtroom. I also knew enough that his embarrassment may very well have further prejudiced him against us - even though, fearing the possibility, I had gone out of the way not to. I was happy that he did not inquire about pictures already taken or make any demands that we destroy them or not use them. I removed the camera and recorder from the table to the small bag on the floor.

        Thomas made no opening statement. I did. I had carefully prepared a 800 word opening statement that gave a overview of the case. My objective was twofold. First to reiterate to the judge just how meritless the city's case was but more importantly to let the appellate court get an overview should the case go that far.
        Our short presentation was interrupted four times, once by Thomas and three times by Pfeiffer. Thomas jumped in when I said, "Our counterclaim is a more complicated matter," protesting that the counterclaim was not appropriately part of my opening statement. The judge attempted to persuade, but not order, me to drop mention of the counterclaim. After I resisted his efforts he overruled Thomas' objection.
        The judge stopped me mid-sentence when I said that, "We do not know who decided to pursue this matter as a criminal case . . . " and informed me that this was a civil case. I then completed the sentence from my prepared statement, " . . . or who later decided to pursue this matter as a civil case rather than a criminal case - nor do we know why." Pfeiffer had formed his opinion without all of the information.
         After I read that the plaintiff knew or should have known that the case against us had no merit, Pfeiffer let his displeasure be known as he interjected with a pained and belittling, "all right." After I stated that the evidence would show either serious incompetence or a malicious use of authority on the part of the City of Columbus," Pfeiffer interjected another, "all right," as if to show his contempt and let me know my words meant nothing. Presumably, Pfeiffer treats everyone in this condescending and disrespectful manner, but that didn't make it any more palatable. However, his little acts of intimidation were successful as we dropped the last part of our opening statement.
        We couldn't believe what was happening. It had been apparent to us through the previous court appearances that Pfeiffer was not objective and now he wasn't even going to appear to be objective.
        The trial proceeded as Thomas presented her case. What unfolded astounds me even to this day. Unbelievably, the enforcement officer who signed and delivered the original order testified that he did not write it and then, in response to my questions, demonstrated his lack of knowledge about what it was about. He said it was actually his supervisor, Janine Aeh, who wrote the order. He then, unbelievably, stated that, after a number of drive-bys, he had observed no zoning code violations at the property. Let me run that by again; the city's entire case was based on this inspector's written order. THE INSPECTOR WHO SIGNED AND DELIVERED THE ZONING CODE VIOLATION ORDER THAT TRIGGERED THE CASE NOT ONLY DENIED UNDER OATH THAT HE WROTE THE ORDER BUT FURTHER TESTIFIED THAT HE HAD DRIVEN BY THE PROPERTY A NUMBER OF TIMES AND HAD OBSERVED NO CODE VIOLATIONS.
        At this point I doubt if either Pfeiffer or Thomas could explain why we were in court.
        Next, incredibly, Janine Aeh testified that she did not write the order. She said she knew nothing about the case until after the order was written and delivered. I was thinking that Pfeiffer would dismiss the case.
         It was apparent that Pfeiffer was aware of what was happening as he asked a few questions about who wrote the order. But his questions did not find the identity of the mystery person. If nothing else, the revelation of just who did write the order and why would be an interesting area to probe when discovery resumed and during the counterclaim phase.
        Their case continued in a seemingly uncoordinated manner. Thomas and Aeh made other unrelated allegations but presented no supporting evidence. I took much pleasure in the fact that they seemed to be grasping for help from the judge. Unbelievably, as if there had not been enough surprises already, of the many things they touched on, they never once referred to the ordinance we were charged with violating. I have to repeat that too: THEY NEVER ONCE REFERRED TO THE ORDINANCE WE WERE CHARGED WITH VIOLATING! THEY PRESENTED NO EVIDENCE PERTAINING TO THE CHARGE OR TO SHOW WE WERE GUILTY OF THE CHARGE AGAINST US! What were we doing there!? What was the judge doing? What's happening here?
        Our turn came quickly. I testified about the facts of the matter from our perspective. It seemed to me that the pivotal matter was proving that the property use predated the code we were charge with violating. Obviously you cannot violate a law that does not exist.
        Another surprise. As I started to present our evidence on this issue, Thomas interrupted saying that the City would stipulate that the garage repair shop use was established on July 20, 1964. I continued but was interrupted by the judge saying that was stipulated. I couldn't believe it. If the garage repair shop predated the code we were alleged to be guilty of violating, and no unusual circumstances were alleged, how could there be a case? For the second time, it seemed to me the judge should dismiss the City's case. Maybe I should have made a motion to that effect, but since they seemed to be making such fools of themselves and, to my way of thinking, a motion to dismiss might jeopardize our counterclaim, I remained silent.
         I presented my physical evidence. Thinking ahead to an appeal, I wanted to be sure that photographs I had made in the mid 1960's were admitted as they told the story, particularly if the case might advance to the appeals court. Thomas didn't object or ask any questions. She gave them only a cursory examination.
        It didn't seem like either the Pfeiffer or Thomas knew what to do next. So the judge concluded the session by saying that the case was continued to August 14, 2000 and that, "the parties have rested relative to the Plaintiff's claim . . . (but) the Court will allow other evidence to come in on August 14." That didn't seem logical to us - the parties have rested but more evidence can be presented - but he was the judge. We could only surmise that since Thomas had not presented any evidence to support the charge against us, instead of dismissing the case, Pfeiffer was giving her an additional eight weeks to find something, to do what she should have done before she filed the case. Speculation aside, the decision to "allow other evidence" after "the parties have rested" was another surprise and certainly wasn't for our benefit.
        I started on August 14th by reiterating things I had already said to make sure they were on the record. I also placed an objection to their general allegations that we were guilty of other violations of the code because they had never amended their complaint or given us notice so that we might prepare for them. The judge said he would take the objection under advisement but he never did rule on it. We expected to win the case, but because of the previous rulings, the attitude of the judge, and the way things were going, we wanted to preserve our argument for the Appellate Court if by some chance it were needed.
        The session ended by the judge giving us his options and immediate dismissal of the city's suit wasn't one of them. Apparently he didn't even consider that.
        Of the three options Pfeiffer presented, the one I really wanted was the third one, to write a post-trial brief. I had considerable information that was not presented including some good cases. From my many many hours of research it was my opinion that I knew more about the old codes than Thomas and all of her experts in Zoning did. But I also knew that I wasn't an attorney and I was playing on their hollowed turf. I feared that any further hint of knowledge and even participation at this point would be interpreted as arrogance and further alienate us from the court, if that was possible.
        I just sat there with my thoughts as the Pfeiffer and Thomas together decided our fate and things were going great. Thomas somewhat indecisively said the post-trial brief would be appropriate. I couldn't help think she was trying to intimidate us and was hoping I would take some opposing position. Inside, I was cheering her on. Things were going our way.
        I thought that her poor presentation was far less that what was expected in a court of law from a lawyer but I had no idea as to how the Pfeiffer viewed it. I figured her post-trial brief couldn't possibly be much better - unless someone helped her with it. I also figured my poor courtroom presentation was not a liability for me but rather what was expected from a nonlawyer. I also figured a good brief would put everything in perspective.
        Pfeiffer set specific dates for submission of the post hearing briefs as well as any reply briefs.
        My wife was very disappointed that the matter would not be resolved that day. We had been married for 36 years. We still hold hands when we take a walk or go to a movie; we are very fortunate to have each other and we know it. After I suffered a serious heart attack four months earlier she had become very defensive about me and was concerned about the stress and any effect the whole situation may have had on my health. Although she was a co-defendant, she spoke for the first time at the conclusion. With tears in her eyes she told the judge that she just wanted the matter over with. It was a short spontaneous act that probably didn't register with either Pfeiffer or Thomas - the nasty things that people do to each other.
        And then, for just a brief instant, I visualized Pfeiffer becoming the strong, intelligent, forceful, decisive, unbiased judge I had formerly imagined, and finally taking charge of the situation, and ordering Thomas to immediately put up or shut up. Show some evidence of wrongdoing right here and now or you're out-of-here.
        But that was not to be.

       I returned to the law library to get information about a Post Trial Brief. I had a good idea of what information I wanted to pass on but I was unsure of the format. I had trouble finding specific information so I started from the beginning. Just what constitutes a brief. Surprisingly I found that briefs ranged from a short memo to a complex document. There was a very good format for a appeal brief but not a post-trial brief. So I decided to generally follow the former with the objective of turning out a complete, easy to read and easy to navigate document. I already had most of the information - I just had to put it into a presentable form.
        After two weeks I ended up with a composition (read our Post-Trial Brief ) that I was proud of. I had a good index of my arguments and authorities. After many rewrites I deemed it easy to read and follow, and most importantly, it was responsive to the objective. The most important thing was that I believed it fairly represented us.
        Thomas' brief fell far short of my standard as she continued to astound us. She brought up many items and issues that were not even discussed in court, such as off-street parking and building lines. Consequently, even if she had a valid argument, and she didn't, there was no evidence to show that I did or did not meet the legal standard she propounded. Her brief had no index and relied on many pages of old city bulletins of virtually all irrelevant information, apparently hoping the judge would do her research. As in the trial, she again made no reference whatsoever to the charge against us. I would have been embarrassed to submit such a document - but then what do I know.
        My Reply Brief (read our Reply Brief ) to her brief was easy. I responded to her arguments in the order presented, pointing that in eight of her sixteen points, she had presented no evidence as to what she was now alleging. Thomas did not submit a Reply Brief.

        6th court appearance

        
The trial was over, the evidence was in, the briefs were in and we were awaiting a decision. Now we receive a notice that the "Plaintiff requests a hearing" on among other things, our "Statement of the Facts" in our post-trial brief. What?
        We thought that the appropriate place to contest anything in our Post-Trial Brief, including our Statement of the Facts, was is the Reply Brief. For reasons unknown to us, Thomas did not submit a Reply Brief and now she was calling for a hearing. My nonlegal mind said the judge would probably rip her. Not only was her Post-Trial Brief very unresponsive to the trial, but now, I thought, she should be helping the process move along, not asking for additional hearings to discuss things that should have been presented in her nonexistent Reply Brief. I'm sure Pfeiffer has discretion in such matters, and again, we couldn't help wondering how he would have responded if we were the ones calling for a hearing instead of submitting the scheduled brief.
        On hearing day I pointed out that she should have addressed this issue in a reply brief. The judge ignored my charge. But he also ignored her request and so, unbelievably, there was no discussion about her problems with our Statement of the Facts, the reason given for the hearing.
        The hearing centered around Pfeiffer's proposed Findings of Fact, again, a matter of which we had no forewarning.

7th court appearance

        More than two months had passed since the conclusion of the trial when we received another letter from the court. We figured the overdue decision had finally been issued. Wrong again. It was a notice that the judge wanted to hold a "Court Evidentiary Hearing." This was incomprehensible to me. It's obvious I'm not a lawyer because I though that the time was long past for the submission of evidence. Or did the words mean something else? How long can this go on? How do I prepare for this?
        It would be an understatement to say we were unhappy with this 7th trip to court over a case that still had no merit, and I made it obvious to the court when I respectfully told the judge, if respect was any longer possible, that the case had no merit and now they "were looking under every rock" to find something against us, and that logic told me that if you examined enough areas they just might find something. He repeated his oft used statement that he was obligated to look into every aspect of the case. We just hoped he would be as thorough during the upcoming countersuit.
        We also figured that this would at least give Thomas a short term victory as we continued to be victims of the system. After all, unlike us, to go to court all she has to do is get on the elevator and go up a few floors and she's there. She probably figured it was a major inconvenience for us to make a court appearance with parking and all. However, with my fire department issued car I was able to park anywhere including the restricted police spaces on the High St. bridge over the freeway. After all, it was the city's case, I was a city employee, and certainly we both wanted justice.
        After the "Court Evidentiary Hearing" was completed, it was apparent that nothing was accomplished. And Pfeiffer followed it up with nothing, no Entry and no acknowledgment that it even took place, even though there was a court reporter present.

The Decision
        
The judge finally issued his decision on December 5th. We had been expecting it any day since the end of August. With the post-trial hearings and slow decision process, we theorized that they were trying desperately to find some face-saving angle for the city. Our decision was made. There was no way a fair decision could go against us and we would definitely appeal an adverse decision.
        The ten page decision was unequivocally in our favor; there was nothing there for the city. It summed up with: "No person in authority with the city of Columbus made any effort either in 1964 or 1968 to deny defendants permits to make additions to the garage which the city of Columbus' records indicate as of 1964 was a commercial garage. Not until thirty-four years after the 1964 permit had been issued by the city of Columbus did anyone from the city question the uses to which 613 East Whittier had been continuously put for over three decades."
        Probably addressing all of the other things Thomas pulled into the case, the judge had no choice but to state in his second to last paragraph that, "This Court finds nothing in the ordinances that would require this Court to find as a mater of law that defendants' dual residential and garage repair shop uses of their property since 1964 has been illegal."
        He concluded with, "Plaintiff's request for injunctive relief is DENIED."
        Although we were pleased, there was no celebration. The arduous process we had been put through and the actual facts of the case made the decision somewhat anticlimactic. If Thomas wanted to appeal we were ready. We suspected that an appeal would not be her decision and if some knowledgeable attorney at city hall were to review the case she might have a whole new set of problems. Besides, we were familiar with the process and any response to an appeal would require little, if any, additional research on our part.

The Countersuit
                        
        Now that the long awaited decision was finally in, we figured the judge would schedule a hearing to start the counterclaim phase of the case. We had pending discovery questions and many more to come to find out what was really happening. How many times had the judge said that our case would go forward if we prevailed on the plaintiff's claim and how many times did he say he was obligated to examine all aspects of the case. After a few days of inaction, I went to the internet to check the court's web page to see if there were any new entries. There was - a single word, "termination." As far as the court was concerned, or hoped, the case was over.
        After all we had been through and all of Pfeiffer's oft repeated words about getting to the "truth," they were going to ignore us and hope we would go away? We decided to wait 30 days to see if Thomas or the people who pull her strings would file an appeal to get rid of our countersuit. Little did we realize the judge would take care of the countersuit for them.
        As we tried over and over to figure why we were suddenly the subject of this legal action, one thing came to mind. I was an employee of the plaintiff, an assistant chief in the fire division. Of the over 1500 firefighters in the Columbus Fire Department I was the most senior of the five assistant chiefs, the highest rank achievable through competitive testing and the rank just below the chief of the division. I was involved in controversies and had made enemies outside of the fire department when I was the chief in charge of the Fire Prevention Bureau.
        The most significant was over the illegal installation of a 500 gallon gasoline tank and the dangerous and illegal dispensing of gasoline in the Ohio Statehouse underground parking garage (read the chilling gas tank story here ). The mayor and the safety director, without saying it, had made it obvious they wanted me to drop that issue.
        There were questions to be answered. Did this play a role in the protracted court case? We didn't know but we intended to find out.

       We filed a two-sentence motion with the court asking for a hearing to set the course for our counterclaim. We attached a copy of the judge's December 23, 1999 Entry stating that, "If defendants prevail on the issue of the plaintiff's claim . . . then discovery will proceed on defendants' counterclaim."
        Since we had an upcoming trip planned to Florida, our second sentence read, "The defendant's respectfully request that the hearing not be scheduled between the dates of February 5 through February 16, 2001."
        Two weeks later we received a notice that the hearing had been scheduled for February 8th, right in the middle of our requested blackout dates (and also our 37th wedding anniversary). Another roadblock.
        I called the bailiff and asked if we could reschedule the hearing. She said rescheduling could be done only with the "permission" of Patsy Thomas. We wondered what kind of a deal this was. Patsy Thomas, the plaintiff's attorney, decides when hearings are held - and we can't even get one scheduled outside a certain 10 day period? Asking Patsy Thomas' "permission" for anything was not on my list of things I wanted to do.
        I sent Thomas an e-mail telling her we had a schedule conflict, and knowing she only went to court on Thursdays, suggested two different Thursdays that would work for us. She answered, selecting the later of the two. I called the bailiff and she, after reiterating that it had to be OK with Thomas, rescheduled it. Another little test and we passed. They tried ignoring us and then they tried nasty tricks but we wouldn't take the hint. If they weren't going to give us our day in court they would have to tell us.

       As always, we attempted to anticipate what hurdles we would have to jump and prepared for the court date accordingly. I figured the discussion would be around our discovery, our previously submitted and pending questions, and the number of interrogatories we would be permitted. I gathered information on the number of people who were involved in the case and the number of repeat and different questions we had already submitted.
        Since the rules required the permission of the court when submitting more than forty questions and there were about a dozen people we could identify who had played a role in the action against us, we would ask the judge to count a question as only one if it were asked of two or more of the involved people. I was sure I could find out who wrote the order and who decided to file it. I knew the mayor's staff was involved and I was sure the mayor himself was involved, at least to the point of approving the action. But why? How many similar cases had they filed? Were there any people who knew the code as it existed in 1964? If so, why didn't they speak up - or if they did why were they ignored? The discovery would answer many questions.
        I also took along notes from my research on the Ohio Supreme Court's definition of legal malice as well as one of their decisions on the nature and scope of discovery.

        When our case was called, Thomas started right out saying first that we hadn't stated a cause of action and, second, we couldn't sue the city. It was quickly apparent the judge didn't support her position on either issue as he basically ignored her issues but it was equally apparent to us that his animosity toward us had not subsided.
        There was never any discussion about our pending questions or about submitting additional questions - there seemed to be a forgone conclusion that there would be no discovery. It was painfully apparent to us that he was looking for a way to push us out of his courtroom. He seemed to be searching for a way to dismiss our countersuit and we guessed that if he couldn't find a reason, he would manufacture one.

       Was politics again rearing its ugly head? Why did such a obviously flawed case as he had just heard have enough merit to be tried while we have to beg for permission to find out something so simple as who determined we were in violation of the zoning code, or who actually issued the order to file the case?

        I told Pfeiffer that there were many questions unanswered. He knew there was conflicting testimony about who wrote the original order, and that all of the city's witnesses denied writing the order. The inspector who delivered and signed the order testified under oath that his boss wrote it (and then testified that after a number of drive-bys, he had observed no code violations at our property). His boss testified under oath that she didn't write it. I wanted to know who wrote the order and why. Certainly this was a discoverable matter.
        I told the judge how another city assistant attorney told me on October 12th that, over my objections, the statehouse gas tank case was over and then on the following day this case against us, a case that had been on attorney Thomas' desk for many months, was filed. I told the judge that I wanted Thomas to answer my earlier question, and name the person who directed that the case be filed on the particular day that it was, rather than her response that my question was, "Irrelevant, overbroad, and is not reasonably calculated to lead to the discovery of admissible evidence." The answer would be one or two words, a person's name, but it would probably be embarrassing and lead to other questions.
        The judge seemed obsessed with the illegal gasoline tank. Although we thought the greatest injustice was the case itself, many of the judge's questions centered around the tank fiasco.
         He made a point of asking what the state fire marshal thought of the matter (That is another story. The prior State Fire Marshal had disapproved the tank when the matter was at his level, but later wrote me a cryptic letter affirming that he was not influencing my actions or decisions. The current Marshal had also expressed disapproval of the operation. However, there is a conflict here. Both fire marshals are intelligent men with long fire service backgrounds; but they serve at the pleasure of the politicians). We wondered what that had to do with our countersuit.
        The judge continued to struggle. He rambled on with a long story about how he had to condemn a 20 year old six unit apartment building since only four units were legal when it was built. We never did figure what this had to do with our case. He had already found, after months of scrutiny, that our property had always been legal. (We discussed this on the way home. At that time the monologue struck us as being nervous chatter, intended to deflect our attention away from the main issue and buy time to figure out how to get out of the dilemma. I think medical professionals call it "displacement behavior.")
        If nothing else the environmental judge, the dispenser of justice as it relates to these matters, now knew about the potential time bomb ticking in the heart of the downtown Columbus. Did he inherit some obligation or responsibility because of his position and presumed knowledge of such matters?
        In the final hearing, to dispel my charge that the case was frivolous, the judge said that early on he thought the city had a good case against us. We were incredulous. Just what made him think that? Was he now making a second decision against us, again without hearing the evidence? How could he presume that he knew enough of the circumstances to determine that the city acted properly when so many irregularities existed and when so few questions had been answered? Or did he know something that we didn't?

The second decision

       It was apparent to us that last two things the judge would permit would be for us to gather information and present our case. It was apparent to us that his decision was made and but that he was having trouble finding some reason to stifle us. He did a poor job of masking his intentions. Why? Didn't he see the injustice here? Did he lose his objectivity through his daily contacts with the city? Did coming from a political background rather than a legal background influence his decisions, the fact that before he was elected to the newly created judgeship he spent eight years as a state senator? Or, prior to that, seven years as executive assistant to the Speaker of the Ohio House of Representatives? Were we getting fair and objective treatment from our court system?

        Another month of waiting there still was no answer. Finally, six weeks after the last hearing, Pfeiffer issued his decision. Our request to conduct discovery, to ask questions, was denied. The City would not have to tell us who the mystery person was who wrote the order for the inspector, why or who told Thomas when to file the case, or whether or not the mayor was involved, and to what degree three of his cabinet members were involved. Or more importantly, just why did they go after us so blindly with such a vengeance.
        

       We guessed that the judge's biggest concern was the illegal gas tank and the political ramifications, even though we told him at the last hearing that we just considered it to be an aggravating matter and not the main issue. If so, he may have had well founded fears in that public officials were openly flaunting the fire code and jeopardizing the safety of many people.

        Without the facts being gathered and evidence being presented, the judge somehow determined that, "(the) Plaintiff's complaint did not represent frivolous conduct as defined by RC 2323.51."
        Pfeiffer contradicted himself. The text of the statute he referred to states among other things that, "Frivolous conduct means either (emphasis added) of the following . . . it obviously serves merely to harass . . . (or) it is not supported under existing law . . . " In deciding the case, Pfeiffer himself found that, " . . . focusing directly on the allegation of the complaint, this Court can find no basis to conclude that the defendants must seek . . . a Certificate of Zoning Clearance . . . " In response to the many additional allegations of the city added as the trial progressed, Pfeiffer said, "Therefore, this Court finds nothing in the ordinances that would require this Court to find as a matter of law that (the) defendants' dual residential and garage repair shop use of their property since 1964 has been illegal."
        The judge had shielded the city from revealing the reason and motivation for the action against us. We would not find out why we were singled out for such treatment.
        Since important questions were not answered, did the judge have had some inside track on the facts of the matter? If so, he did not share his knowledge with us.
        Pfeiffer's decision became even more bizarre he went on to say, "The legal theory of estoppel, which is what the defendants argue, is not applicable here." Our argument? Maybe as our defense against the bogus suit but certainly not in our countersuit which was now being argued.
        Volume 42 of Ohio Juris Prudence explains estoppel. The definition runs for many pages but starts out with, "It has been said that 'estoppel' is one of those legal words that is frequently used quite loosely." The explanation goes on to discuss the ambiguities and give different definitions of the word attributed to different people.
        That was a real stretch we never did figure out and Pfeiffer didn't extend the courtesy of giving his definition of estoppel, however loosely used, or an explanation of his use as it applied to this case. It was reasonable to assume that he couldn't. He completely ignored our seven points in our counterclaim which has not even a distant relationship to estoppel.
        During the trial before any evidence was presented by us, Thomas said the city was stipulating that the business existed continuously since1964. This is exactly what we said in our Answer to the complaint. I suspect that every first year law student knows that, unless special circumstances exist, a zoning law is not retroactive. Both the state laws and the Columbus city codes say that. There was never a case and logic tells us even a weak judge would have had to know it. Although possibly the basis for his "estoppel" proclamation, that was the city's case, not ours.
        The judge, who quoted some of our counterclaim allegations, totally ignored the main claim that, "The plaintiff does or should have full knowledge of the laws and their application in zoning matters." They had no excuse for their performance. This is where the, "abuse of process," and the, "...aggravated, willful, wanton, intentional, reckless, and deliberate disregard of the defendants rights," entered the picture. And Pfeiffer called this, "The legal theory of estoppel, which is what the defendants argue..." To say such a statement is outrageous is an understatement.
        By dismissing our claim, Pfeiffer was able to totally ignore all of our requests (called demands in the suit as the process requires). Among other things we asked to be reimbursed for our expenses, compensated for the many hours we spent on the case, and be protected from retaliatory harassment.
        Pfeiffer summed up his reaching version of the facts with the single paragraph sentence, "Plaintiff's motion to dismiss defendants' counterclaim is GRANTED." He not only denied us access to the facts, he denied us the opportunity to add to the existing evidence to show the outrageous conduct of the city. In spite of the information that was already uncovered, he dismissed our countersuit. Consciously or otherwise his decision assured that he would not be the judge who embarrassed the politicians and a coveted appointment to a federal judgeship or even bigger things would not be jeopardized.

       In one of our early court appearances Pfeiffer said, "This may sound corny, but I want to find the truth," or very similar words. Corny? Why would he make an excuse for doing what he was supposed to do. Cautiously, we believed him and were glad to hear him say that. Our biggest fear would be not getting to the truth and as it turned out our fears were well founded.
        From the first motion before the first of our eight court appearances, we realized that we would be walked over by the judge. In this latest instance we certainly could appeal the outrageous decision but a win in the appeals court would just send the case back to Pfeiffer who could continue his intimidation and pattern of throwing roadblocks in front of us. We had read prior court decisions in cases of this type so we knew he could still rule against us in the end and that could not be successfully appealed, unless we could prove what we guessed was actually happening - an impossible task.

        As he had done with our opening statement, Pfeiffer had successfully worn us down. We had decided beforehand that we would drop it, the deciding factors being that this was the age of the internet and communication. People like Pfeiffer who abuse their authority will no longer be able to hide their deeds when the media is not there to report what is happening. Without realizing it, their anonymity has vanished. Secondly, my retirement from the Fire Department was just around the corner and with that the city's last wedge would be gone. The story would get aired and the final decision just might come in the court of public opinion.

Epilog

        What guided the city's actions? Why would they pursue such a meritless case? Will we ever know if their employee's actions were spawned by incompetence, or some other more sinister motive, or who pulled the strings and why?
        What we did see though was a colossal waste of time and resources. Attorney Thomas would later write to the Disciplinary Counsel of The Supreme Court of the State of Ohio that, "Prior to filing this complaint, I had extensive conversations with the code enforcement officers, the Chief Legal Counsel of the City Attorney's Office and spent countless hours researching the archives of the City to obtain copies of the relevant code sections that went back as far as the 1920's." And then she charged us with violating a code that was passed in 1979 for a property use that was established in 1964?
        And that's just the beginning of the wasted resources. Imagine how much time she and others spent after filing the complaint. All of the court appearances, filing the motions, answering mine, answering and submitting interrogatories, submitting and answering briefs and on and on.
        If it were to cost the city only $200 per hour to hire and support each attorney with their facilities and support staff, how many thousands of dollars did the city spend on this case. Now add to this the cost of the judge and his staff and facilities. There certainly isn't any budget problems in the city attorney's office. Either that or they must have really wanted to get us. But why?
        I had numerous dealings with the city's building and zoning department over the years, and frequently observed that strange outcome when one mixes power and responsibility with arrogance and incompetence.
        For ten years I had observed close-up how the city hall politicians put themselves and their egos above everyone and everything. The performance of the mayor and his subordinates was not a surprise.
        I had fewer dealings with our court system so the biggest surprise to us was the performance of the judge. We'll probably never know for sure what caused his seeming animosity toward us, why he let the City's case continue, even when it was glaringly obvious they had no case, and then refused to let us find out what brought about the action against us. More importantly, we'll probably never know what motivated him. Why did he protect the city from answering tough questions as well as some embarrassing questions - or is that the answer? If he were a product of the legal system without the political background, would his decisions have changed? Was he proud of how he handled the case? Does he handle other cases like this?
        It goes without saying that in our society judges are necessary since someone must have the final word, make the final decision, when a dispute arises. This person must have character and integrity beyond reproach. If there is a place where bias, favoritism, partiality, predisposition, or status seeking or climbing, do not belong, this is it. Judges have a great deal of trust and authority and the persons who are subjected to this control have a reasonable expectation of nothing less that blind justice in return.
         Naively, even though the judges come with political party endorsements, we always though their decisions were apolitical. It was my thought that Pfeiffer just might be a decent judge, maybe even above average, when politics were not a factor - but then, could any judge be considered decent if he were not that all of the time?
        Pfeiffer did try one last shot. In his final Entry and Order, the one denying our request to conduct discovery, he saw fit to make a grammar correction and point out two punctuation errors in one of the numerous papers we had filed many months earlier. Since the errors didn't change the content or meaning, it seemed that the only thing he brought to attention was his combative attitude toward us. Ironically, the grammar correction he made was also wrong.
        
        What were the lessons learned here? The most obvious lesson was that it takes considerable resources to get justice and we came up short. We had to expend considerable time and effort just to force the judge to admit we were not in violation of the zoning code. To get a complete and fair resolution of the matter, we would have to expend another large chunk of time. With the judge's considerable power and based on his performance, it seemed to us there was no chance of getting objective decisions from him. We would have had to go to a higher court.
        They unfairly beat up on us and got away with it, both the city and Judge Pfeiffer. Sadly, they not only harmed us but they also degraded both themselves and our justice system.
        As reported in the September 12, 2003 Columbus Dispatch, Ohio Supreme Court Chief Justice Thomas J. Moyer said in his annual State of the Judiciary speech, "We see an increasing number of judges each year that cause you to say, ‘What were they thinking? . . . judges who are insensitive to the fact that they are held to a higher standard.'" Higher standard? Some miss the basic standard.
        Sure, we won the case against us but was justice really served? Is there any incentive for the city not to repeat their actions? The judge made sure many pertinent questions would never be answered. His lack of corrective action, much less his failure to give even a veiled reprimand, amounted to tacit approval of the city's conduct and assured that there would be no training and no change of attitude or philosophy in the City of Columbus, Department of Trade and Development, much less the mayor's or safety director's offices.

John E. Rees


January 10, 2003 Update:
        The January 10, 2003 Columbus Dispatch reported that Pfeiffer would be sworn in as the new Columbus City Attorney on Monday. Some insight to his past agenda came through in the article.
        Pfeiffer was reported to have been "itchy"for a change for about a year.
        The city council did not go through the formal screening process. The council president said Pfeiffer was an outstanding judge.
        Councilwoman Maryellen O'Shaughnessy said Pfeiffer brings well-honed political skills to the office . . . "He has been a senior statesman for the party . . . he's given a lot of advice to younger politicos."
        Franklin County Democratic Chairman Denny White said, "He's one hell of a campaigner. He works hard."
        Interesting testimonials for someone who supposedly had been a objective unbiased municipal court judge for the past eleven years.
        So now he is the former Franklin County Environmental Court judge and the new Columbus City Attorney, Richard C. Pfeiffer, Jr.
Your comments are invited. E-mail to John Rees: jerees@att.net

One more little story
        I remember about 60 years ago when I was in the third grade. There was a moderately retarded kid (possibly not a politically correct term now, but I use it with due respect) in the eighth grade. His parents were friends of my parents so I knew him better than most. He stuttered and was uncoordinated but was friendly and quiet.
        On the playground at recess a classmate of his was taunting him. Then he started slapping him. Pretty soon Dick’s nose was bleeding and he was crying. I felt so bad but was powerless to do anything. Luckily a nun saw the commotion and came to investigate. The bully lied and said Dick started it. Certainly she knew that Dick couldn’t even defend himself, much less start a fight. She broke it up and moved on. She did nothing. What a disappointment. What an injustice.
         So in my adventure with Judge Pfeiffer and his performance I saw a parallel. In this case Pfeiffer not only played the part of the do-nothing nun but he threw in with the political bullies and did a little taunting himself. I could handle the sleazy politicians within the system, but only if the game had been played by the rules.
         However, this time I am not powerless to do anything. Since I posted this essay on the internet several years ago I have received many many responses. And I know that some of the actors in this fiasco have received feedback also. One email came from a law student who wanted more information and said my essay was discussed in their law class. That made my day.
         I can’t help but think that over time, judge's and politicians' performance may improve, if for no other reason than that someone will tell on them.