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Appeals court reverses North Ridgeville man’s conviction for telecommunications harassment for angry phone calls to city about water shut-off

If you’re a person who believes that government officials shouldn’t be allowed to prosecute you and throw you in jail if you’re rude to them when you complain about how they do their jobs, you’ll be glad to hear about the decision issued on Monday by the Ninth DistrictCourt of Appeals reversing the conviction of our client, a North Ridgeville father of two young children, for telecommunications harassment after he placed a series of phone calls to the water department over 24 minutes, on a single afternoon, to complain that the city shut his water off without notice.

This was a shockingly unconstitutional prosecution and conviction and we’re grateful it’s been reversed. According to our research, this case represents the only time that Ohio’s telecommunications fraud statute—R.C. 2917.21—has ever been used to seek a conviction based on phone calls made to a public office, let alone while that office was open and dedicated to filed calls from the public about public business.

In this case, not only did our client not receive notice that his water would be shut off (which was done because he was a few weeks late paying an $180 bill), the city’s utility manager (one of the alleged “victims” of the alleged “harassment”) confirmed at trial that she had just instituted a new policy whereby the city would increase its revenues by being less forgiving of citizens in arrears on their water bill. There was no dispute that our client’s purpose in calling the city on this day was to have his water service restored. While our client did become increasingly angry and directed expletives (mainly the F word) toward city officials on the eight phone calls he placed after they had repeatedly hung up on him and were unresponsive to his concerns, there was no evidence that he uttered any threats of harm against them. There was also no dispute at trial that on the last of his eight phone calls over the 24-minute time span at issue, our client was finally able to get through to a city official who competently addressed his concerns and agreed to have our client’s water turned back on in exchange for partial payment and a promise to make payment in full three days later after he received his next paycheck. He then wrote an email to his councilperson complaining about the way the city officials treated him, which the city utility manager then forwarded to North Ridgeville police chief in requesting that our client be charged with a crime for complaining to her. A few days later, our client received word of his indictment.

We repeatedly argued prior to and at the trial that these phone calls to the water department were entitled to First Amendment protection, as the right to complain to the government is sacred, and the Constitution does not allow for the policing of the tone, language, or manners of those who make such complaints. Despite this, and the complete lack of evidence that our client was doing anything but expressing a legitimate and constitutionally protected complaint to the government, albeit angrily and vulgarly, the trial judge denied our repeated Rule 29 motions, allowing the case to be submitted to the jury, and then refused to instruct the jury on the heightened scrutiny the First Amendment requires of criminal charges that implicate a defendant’s free speech rights. After about three hours of deliberation, the jury came back deadlocked. The judge then gave the jury a supplemental instruction to “reexamine their positions” to reach “a unanimous verdict” and after about fifteen minutes the obviously confused jury members came back with a guilty verdict, as some of the jurors looked right at us and shrugged. The judge then sentenced our client—who had no criminal history—to six months in prison and sent him to jail for three days, suspending the rest of his sentence pursuant to compliance with probation, including “anger management” classes.

Thankfully the Ninth District Court of Appeals reversed this conviction by a 2-1 decision (with Judge Donna Carr and Judge Jennifer Hensal in the majority, and Judge Jill Lanzinger dissenting) finding that “a careful review of the record reveals that it does not contain any evidence that [our client’s] calls were made to purposefully abuse, intimidate, or harass the employees.” To the contrary, “[t]he employees testified that [our client] called the utilities department to get his water service turned back on. He began the first call politely but became irate when he learned that they could not or would not help him. He began repeatedly swearing at them and accused them of trying to kill him and his children by depriving them of water.” Importantly, the Court noted that “it is understandable that the employees felt harassed, intimidated, and abused by [our client’s] profanity-laced tirades and they were justified in hanging up on his repeated calls,” but “[f]or [him] to be guilty of telecommunications harassment, … we must focus on his state of mind and whether it was his purpose to “abuse, [intimidate], or harass’ them.” In the absence of any such evidence, the Court didn’t need to reach the First Amendment issue to grant our assignment of error that “the state’s evidence was insufficient to sustain a conviction for telecommunications harassment because it was undisputed that [our client] had a legitimate purpose for his calls (restoring water service to his home) and there was no evidence that he specifically intended to harm anyone by making the calls.”

Despite that it was unnecessary for the Court to reach the issue of whether our client’s speech was constitutionally protected, Judge Carr wrote a separate concurring opinion “to express [her] concern that prosecutions for telecommunications harassment such as the one here could have a chilling effect on the First Amendment rights of citizens to contact government offices in order to redress grievances.” “Courts should remain mindful,” Judge Carr added, “that the First Amendment affords protections against laws which abridge the freedom of speech as well as the freedom to petition the government to redress grievances.”

We’re grateful that these fundamental constitutional rights were upheld by the Court, with thanks also to Professors Eugene Volokh (UCLA), Stephen Lazarus (Cleveland State), Kevin O’Neill, and Margaret Tarkington, Attorney Maurice Thompson of the 1851 Center for Constitutional Law, and Attorney Jeff Nye for submitting an amicus brief on our client’s behalf.

We will now be submitting a monetary demand to the City of North Ridgeville for compensation to our client for violating his constitutional rights by subjecting him to this malicious prosecution, all of which would have been completely unnecessary had North Ridgeville’s prosecutor simply respected the constitution and declined to issue these outrageous charges in the first place.

As always, we at The Pattakos Law Firm are proud to be of service in helping protect Ohioans’ constitutional rights, including to fight against efforts to criminalize constitutionally protected speech and political activity.

For a copy of the Court’s decision see here.

For a link to a blog post by Professor Volokh see here.

Update: For a link to a report on this case in the Elyria Chronicle Telegram see here.