[Cite as State v. Gamble,
2022-Ohio-2964.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellant,
V.
JOHN E. GAMBLE,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 2021-CO-00006
Criminal Appeal from the
Municipal Court of Columbiana County, Ohio
Case No. 20CRB000796
BEFORE:
Thomas R. Wright, Cynthia Westcott Rice, Mary Jane Trapp, Judges.
JUDGMENT:
Reversed; remanded
[Cite as State v. Gamble,
2022-Ohio-2964.]
Atty. Dave Yost, Ohio Attorney General, Atty. Benjamin M. Flowers, Solicitor General,
Atty. John Rockenbach, Deputy Solicitor General, Atty. Daniel M. Kasaris, Assistant
Attorney General, 30 East Broad Street, 17th Floor, Columbus, Ohio 43215, for Plaintiff-Appellant, and
Atty. Ronald D. Yarwood, DeGenova and Yarwood Ltd., 42 North Phelps Street,
Youngstown, Ohio 44503, and Alty. John B. Juhasz, 7081 West Boulevard, Suite No. 4
Youngstown, Ohio 44512, for Defendant-Appellee.
Dated: August 25, 2022
WRIGHT, J.
{91} Appellant, the state of Ohio, appeals the judgment dismissing the criminal
complaint filed against appellee, John E. Gamble. We reverse and remand.
{{2} In 2020, a criminal complaint was filed against Gamble alleging that during
his campaign as a candidate for the office of Columbiana County Prosecutor in 2020,
Gamble solicited and aided classified civil servants to pose with him for a campaign
advertisement that was posted on Facebook. The complaint charged Gamble with four
counts of complicity in violation of R.C. 2923.03(A)(1)-(2) for soliciting and aiding others
to violate the Little Hatch Act. See R.C. 124.57. Thereafter, Gamble moved to dismiss
the complaint. After hearing arguments on the matter, the trial court granted the motion.
{93} In its sole assigned error, the state maintains:
THE TRIAL COURT ERRED IN GRANTING JOHN
GAMBLE’S MOTION TO DISMISS THE CRIMINAL
COMPLAINT.
{94} Although not referenced in the judgment entry, Crim.R. 12(C) governs
pretrial motions. This rule provides that “[p]rior to trial, any party may raise by motion any
defense, objection, evidentiary issue, or request that is capable of determination without
the trial of the general issue.” “Crim.R. 12 permits a court to consider evidence beyond
the face of [the charging instrument] when ruling on a pretrial motion to dismiss [the
charging instrument] if the matter is capable of determination without trial of the general
issue.” State v. Brady, 119 Ohio St.3d 375,
2008-Ohio-4493,
894 N.E.2d 671, 9 3; see
also State v. Gaines,
193 Ohio App.3d 260, 201 1-Ohio-1475,
951 N.E.2d 814, 9 16 (12th
—~3-
Dist.) (“The Ohio Rules of Criminal Procedure do not provide for the equivalent of a civil
motion for summary judgment.”).
{15} The four charges alleged violations of R.C. 2923.03(A)(1)-(2), which
provides, “No person, acting with the kind of culpability required for the commission of an
offense, shall … [sJolicit or procure another to commit the offense” or “[aJid or abet
another in committing the offense[.]’ The alleged underlying offenses here pertain to the
Little Hatch Act, which, in relevant part, prohibits an “officer or employee in the classified
service of the state, the several counties, cities, or city school districts of the state, or the
civil service townships of the state” from “tak[ing] part in politics other than to vote as the
officer or employee pleases and to express freely political opinions.” R.C. 124.57(A). In
Heidtman v. Shaker Heights, 163 Ohio St. 109,
56 O.O. 171,
126 N.E.2d 138 (1955), the
Supreme Court of Ohio addressed the prohibition of “tak[ing] part in politics” as set forth
in the predecessor to R.C. 124.57 and held that the phrase must be read in its narrower,
partisan context, to wit: “‘political affairs in a party sense; the administration of public
affairs or the conduct of political matters so as to carry elections and secure public office;
party intrigues; political wirepulling; trickery.” Heiditman at 118-119, quoting Funk &
Wagnalls New Standard Dictionary (1952). The Ohio Administrative Code provides
guidelines concerning conduct regulated by the Little Hatch Act. See Ohio Adm.Code
123:1-46-02. '
1. “(A) The purpose of this rule is to provide appointing authorities, personnel officers, and others with
guidelines concerning political activity. Employees in the classified service of the state are
prohibited by section 124.57 of the Revised Code from engaging in political activity. * ~…(B)
Examples of permissible activities for employees in the classified service include, but are not limited
to the following: (1) Registration and voting; (2) Expression of opinions, either oral or written; (3)
Voluntary financial contributions to political candidates or organizations; (4) Circulation of
nonpartisan petitions, petitions that do not identify with any particular party, or petitions stating
views on legislation; (5) Attendance at political rallies; (6) Signing nominating petitions in support
of individuals; (7) Display of political materials in the employee’s home or on the employee’s
property; (8) Wearing political badges or buttons, or the display of political stickers on private
vehicles; and (9) Serving as a precinct election official under section 3501.22 of the Revised Code.
(C) The following activities are prohibited to employees in the classified service: (1) Candidacy for
public office in a partisan election; (2) Candidacy for public office in a nonpartisan general election
if the nomination to candidacy was obtained in a partisan primary or through the circulation of
nominating petitions identified with a political party; (8) Filing of petitions meeting statutory
requirements for partisan candidacy to elective office; (4) Circulation of official nominating petitions
for any candidate participating in a partisan election; (5) Service in an elected or appointed office
in any partisan political organization; (6) Acceptance of a party-sponsored appointment to any office
normally filled by partisan election; (7) Campaigning by writing for publications, by distributing
political material, or by writing or making speeches on behalf of a candidate for partisan elective
Case No. 2021-CO-00006
{46} Here, evidence was not presented on the issues raised in the motion to
dismiss, and the hearing on the motion consisted of oral argument only. After hearing,
the trial court dismissed the complaint. The parties have differing interpretations of the
dismissal entry. Therefore, we reproduce the relevant paragraphs below, with lettering
added for purposes of discussion.* After quoting the Little Hatch Act, the entry provides:
[A] The Defendant’s contention is that the application of this
statute under the unique facts and circumstances of this case
would amount to a violation of the Defendant’s rights
guaranteed by both the US Constitution in amendments | and
XIV and the Ohio Constitution in Article | sections 2, 11, 16
and 20. Defendant does not contend, nor can this Court find
herein that the above Statute is Unconstitutional on its face.
However, the Defendant does challenge this Statute as it is
applied to him and these facts and circumstances which is
disputed by the State of Ohio.
[B] More specifically, the Defendant (and any uncharged
principal) enjoys a Constitutionally protected right to freedom
of speech and of free association. ORC 124.57 speaks
specifically to covered State actors of their right “to express
freely political opinions”. In order for the State of Ohio to
restrict/infringe on these individual freedoms, they must show
a Compelling State Interest to do so. The State’s Interest
does not rise to that level herein. Therefore, this prosecution
must fail as a matter of law.
[C] Part of the Defendant’s challenge to the ORC section
above is that by its very terms, it is applicable to employees
“in the classified service”, of which clearly this Defendant is
not.
[D] Another issue is whether this Defendant may be properly
charged with complicity when no principal actor has been
office, when such activities are directed toward party success; (8) Solicitation, either directly or
indirectly, of any assessment, contribution or subscription, either monetary or in-kind, for any
political party or political candidate; (9) Solicitation of the sale, or actual sale, of political party
tickets; (10) Partisan activities at the election polls, such as solicitation of votes for other than
nonpartisan candidates and nonpartisan issues; (11) Service as witness or challenger for any party
or partisan committee; (12) Participation in political caucuses of a partisan nature; and (13)
Participation in a political action committee which supports partisan activity.”
2. Acopy ofthe entirety of the trial court’s judgment entry is attached.
Case No. 2021-CO-00006
charged with the underlying offense. The Court finds that the
prosecution doesn’t fail on these grounds.
[E] However, the gravamen of this point is whether a criminal
prosecution involving Complicity may be maintained where
the underlying crime[ ](charged or not) does not exist? The
Court finds the answer to be no. However, is there an actual
underlying crime alleged here? In order to sustain this
prosecution, the State of Ohio must show that the Defendant
assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime and must have shared
the criminal intent of the principal. The State can not sustain
their burden in this prosecution because this Defendant is in
the UNCLASSIFIED service not the CLASSIFIED service as
required by ORC 124.57. Because he can not be prosecuted
under these circumstances under ORC 124.57, this
prosecution must fail as a matter of law.
{17} Accordingly, the trial court begins in paragraph A by summarizing Gamble’s
claim that the Little Hatch Act is unconstitutional as applied to him.
{48} However, the parties then read paragraph B as a holding of the court,
although they disagree as to the import of the holding. The state reads this paragraph as
holding that the Little Hatch Act is unconstitutional as applied to Gamble. However,
Gamble appears to interpret this paragraph as determining that the constitutional right to
freely express political opinions is embedded in the Little Hatch Act, and, because of this,
the state was required to demonstrate a compelling reason to restrict these rights to
establish commission of the underlying offense.
{49} However, we do not reach the merits of either party’s interpretation of
paragraph B, as it does not announce the trial court’s ruling or reasoning on the issues.
The paragraph begins with the phrase “more specifically,” which would refer to the
discussion immediately prior, wherein the trial court recounted Gamble’s challenges.
Thus, paragraph B appears to be continuing the recitation of Gamble’s arguments. The
court makes no indication in paragraph B that it has shifted from recitation of argument to
reasoning or finding of the court. Accordingly, as there is no further reference in the
decision to the First Amendment, the trial court did not reach the issue. Instead, the court
dismissed the complaint on other grounds. See /n re J.M., 7th Dist. Jefferson No. 09 JE
21, 2010-Ohio-2700, ¢ 65, citing State v. Talty,
103 Ohio St.3d 177,
814 N.E.2d 1201,
Case No. 2021-CO-00006
-—6-
2004-Ohio-4888, J 9. (“The Ohio Supreme Court has cautioned that constitutional
questions should not be answered unless it is absolutely necessary; if a case can be
decided without addressing the constitutional issue, the constitutional issues should not
be ruled on.”). We decline to review, in the first instance, the merits of the constitutional
arguments, including the effect of inclusion of First Amendment protections in the Little
Hatch Act. See Carney v. Shockley,
2014-Ohio-5830,
26 N.E.3d 1217, 4 48 (7th Dist.)
(discussing impropriety of appellate court deciding summary judgment issue that the trial
court had not reached).
{410} Next, with respect to paragraphs C and D, neither party disputes the
statements contained therein. However, the state maintains that the trial court’s reliance
on Gamble being in the unclassified service indicates that the trial court misunderstood
the nature of the charges. Specifically, the state repeatedly references that Gamble was
not charged directly with violation of the Little Hatch Act, but instead with complicity.
There is no dispute that Gamble was charged with complicity, and our reading of the entry
does not indicate that the trial court misunderstood the nature of the charges.
{411} However, with respect to paragraph E, it is unclear what the trial court
intended by questioning whether the underlying offense “exist[s]” and whether there was
“an actual underlying crime alleged[.|” There is no dispute that the Little Hatch Act
constituted the alleged underlying offense in the complaint, which tracked the relevant
portions of the statutory language regarding complicity and the Little Hatch Act in each
count.
{412} Gamble appears to construe the questions posed in paragraph E as the trial
court questioning whether the underlying offense was proven. Gamble maintains that the
trial judge afforded the state the opportunity “to prove” violation of the Little Hatch Act by
holding a hearing on Gamble’s motion, “but at that hearing, the state offered no evidence,
no witnesses, no exhibits.”
{413} The state argues that it was not yet required to prove whether the principals
violated the Little Hatch Act and whether Gamble was complicit in such a violation. We
agree. Such issues are the general issues for trial on this matter and not appropriately
decided by way of a pretrial motion to dismiss. See Gaines, 2011-Ohio-1475, at 4 21
(where trial court “did not simply determine whether the indictments alleged an offense”
Case No. 2021-CO-00006
_7-
but “engaged in a pretrial determination of the general issue of the case” dismissal was
not proper under Crim.R. 12(C)).
{414} The essence of the trial court’s ruling is contained in the remainder of
paragraph E. The trial court concluded that because Gamble could not be directly
charged for violation of the Little Hatch Act (because he was not a classified employee),
he likewise could not be charged as complicit in such a violation. However, we are unable
to locate support for the latter determination. One requirement of complicity is acting “with
the kind of culpability required for the commission of an offense.” However, the statute
does not require the accomplice be subject to prosecution for direct commission of the
offense to sustain a complicity charge. See R.C. 2923.03.
{415} Accordingly, the state’s assigned error has merit. The judgment of the trial
court is reversed, and the matter is remanded for further proceedings consistent with this
opinion. We express no opinion as to the parties’ arguments relative to the First
Amendment, as, to the extent such arguments were presented to the trial court, they
remain to be decided by the trial court in the first instance.
3. The state maintains that it could have charged Gamble directly with violating the Little Hatch Act
under a provision of the statute that pertains to all persons, regardless of whether they are classified
civil servants. However, as this was not the manner in which Gamble was charged here, we do
not further address this issue.
Case No. 2021-CO-00006
For the reasons stated in the Opinion rendered herein, the assignment of error is
sustained, and it is the final judgment and order of this Court that the judgment of the
Municipal Court of Columbiana County, Ohio, is reversed. We hereby remand this matter
to the trial court for further proceedings according to law and consistent with this Court’s
Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
JUDGE THOMAS R. WRIGHT,
ELEVENTH DISTRICT COURT OF APPEALS,
SITTING BY ASSIGNMENT
JUDGE CYNTHIA WESTCOTT RICE,
ELEVENTH DISTRICT COURT OF APPEALS,
SITTING BY ASSIGNMENT
JUDGE MARY JANE TRAPP,
ELEVENTH DISTRICT COURT OF APPEALS,
SITTING BY ASSIGNMENT
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 2021-CO-00006
CO! UMBIANA COUN
MUNICIPAL COUR
IN THE MUNICIPAL COURT OF & MAR 0 8 2021
COLUMBIANA COUNTY, OHIO = ANTHONY J. DA
CLERK
STATE OF OHIO CASE NO. 20 CRB 000796
Plaintiff
Vs. JUDGMENT ENTRY
JOHN E. GAMBLE
Defendant
This matter came before the Court for hearing on March 5, 2021 with
Counsel! for both parties: Assistant Attorney General Daniel M. Kasaris for the
State of Ohio and Attorneys Ronald D. Yarwood and John B. Juhasz for the
Defendant appearing.
Counsel addressed the pending issues/motions as follows:
1. The August 4, 2020 Complaint which charges the Defendant with 4
Unclassified Misdemeanors in violation of ORC 2923.03(a)(1), ORC
124.57(A) and ORC 124.62. ORC 124.57 is being enforced pursuant to
ORC 124.64.
2. The Defendant’s November 14, 2020 Motion to dismiss the complaint;
3. The Defendant's November, 2020 Motion in Limine;
4. The State of Ohio’s February 23, 2021 Response to the Motion to
dismiss the complaint.
As to #3 above, the parties discussed the list of witnesses and other
evidence and expressed confidence an agreement could be reached. Regarding
the Motion in Limine, it was taken under advisement until the time of trial as may
then be germane.
ILIO
Case No. 2021-CO-00006
Regarding the remaining issues raised above, the Court has had the
opportunity to fully consider them in light of the record in this case. This includes
the oral argument in open Court offered by Counsel for both sides.
The Defendant's Motion to Dismiss is two pronged contending that these
charges must be dismissed as the State’s complaint is:
A. An attempt to criminalize Constitutionally Enshrined rights of Freedom
of Speech and Freedom of Association;
B. An improper allegation of Complicity by this defendant to commit a
crime where there is no underlying crime.
Ohio Revised Code Section 124.57 is commonly known as the “Little Hatch
Act" written into statutory law in part to prevent employees in the classified civil
service from engaging in partisan political activities. It states in pertinent part:
(A)No officer or employee in the classified service of the ***counties***shall
directly or indirectly, orally or by letter, solicit or receive, or be in any
manner concerned in soliciting or receiving, any assessment,
subscription, or contribution for any political party or for any candidate
for public office; nor shall any person solicit directly or indirectly, orally
or by letter, or be in any manner concerned in soliciting, any such
assessment, contribution , or payment from any officer or employee in
the classified service of the ***several counties***; nor shall any officer
or employee in the classified service of the***counties***be an officer in
any political organization or take part in politics other than to vote as the
officer or employee pleases and to express freely political opinions. . .
The Defendant's contention is that the application of this statute under the
unique facts and circumstances of this case would amount to a violation of
the Defendant's rights guaranteed by both the US Constitution in
2
—~10-
Case No. 2021-CO-00006
amendments | and XIV and the Ohio Constitution in Article | sections 2, 11,
16 and 20. Defendant does not contend, nor can this Court find herein that
the above Statute is Unconstitutional on its face. However the Defendant
does challenge this Statute as it is applied to him and these facts and
circumstances which is disputed by the State of Ohio.
More specifically, the Defendant(and any uncharged principal) enjoys a
Constitutionally protected right to freedom of speech and of free association.
ORC 124.57 speaks specifically to covered State actors of their right “to
express freely political opinions”. ‘In order for the State of Ohio to
restrict/infringe on these individual freedoms, they must show a Compelling
State Interest to do so. The State’s Interest does not rise to that level herein.
Therefore, this prosecution must fail as a matter of law.
Part of the Defendant’s challenge to the ORC section above is that by its
very terms, it is applicable to employees “in the classified service”, of which
clearly this Defendant is not.
Another issue is whether this Defendant may be properly charged with
complicity when no principal actor has been charged with the underlying
offense. The Court finds that the prosecution doesn't fail on these grounds.
However, the gravamen of this point is whether a criminal prosecution
involving Complicity may be maintained where the underlying crime(charged
or not) does not exist? The Court finds the answer to be no. However, is
there an actual underlying crime alleged here? In order to sustain this
prosecution, the State of Ohio must show that the Defendant assisted,
encouraged, cooperated with, advised, or incited the principal in the
commission of the crime and must have shared the criminal intent of the
principal. The State can not sustain their burden in this prosecution because
this Defendant is in the UNCLASSIFIED service not the CLASSIFIED service
as required by ORC 124.57. Because he can not be prosecuted under these
-11-—-
Case No. 2021-CO-00006
circumstances under ORC 124.57, this prosecution must fail as a matter of
law.
Based on the foregoing, the Court does hereby order as follows:
1. The Defendant’s November 14, 2020 Motion to Dismiss is GRANTED;
2. The August 14, 2020 Complaint is DISMISSED;
3. The Defendant is DISCHARGED;
4. The Final JURY TRIAL beginning March 10, 2021 is CANCELLED;
5. The Defendant’s November 24, 2020 Motion in Limine is MOOT;
6. Costs applied to the State.
SO ORDERED:
Dated: S-ROt Qu CO NR
DAVID E. STUCKI, JUDGE
By Supreme Court Assignment #20JA1137
cc: Assistant Ohio Attorney General Daniel M. Kasaris
John B. Juhasz and Ronald D. Yarwood for the defendant
Judge Stucki
—~12-
Case No. 2021-CO-00006
