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Case: 2015TRD11042
2015CRB4111
Village of Boston Heights
Plaintiff
v.
Defendant's Motion for
Disqualification of private attorney
for violation R.C. 2938.13; Violation
D.R. 8.4; Sanctions
Eric J. Brewer
Defendant
The Defendant moves the Court for disqualification and removal of private attorney Thomas DiCaudo
as the alleged prosecutor of the Village of Boston Heights' mayor's court for violation of R.C. 2938.13, and
for misconduct pursuant to Disciplinary Rule 8.4.
All the acts combined together within this pleading describe constitutional, statutory and rule violations
knowingly committed by private attorney DiCaudo, who has been retained by the Village of Boston Heights as a
private lawyer to prosecute the Defendant and other Ohioans who are unaware his law firm is also contracted to
perform legal counsel services that are incompatible with the duties of a prosecutor.
The acts described within have created an extreme prejudice against the Defendant and deprived him of
the opportunity to interact with an appointed official who has been duly-authorized; and one who has sworn
allegiance to performing the office of prosecutor's administration of justice duties.
Statement of Facts and Law
Defendant alleges that Attorney Thomas DiCaudo is operating in violation of R.C. 2938.13 as a private
attorney prosecuting the Defendant for allegedly violating village ordinances and the state of Ohio's general
laws. His law firm of DiCaudo, Pitchford & Yoder is also under contract to perform legal counsel duties.
The two lawyer positions are incompatible and operate in conflict with each other. The prosecutor is
supposed to administer justice pursuant to Disciplinary Rule 3.8 and serve as a reviewing official of citizen
complaints against government officials and other citizens pursuant to R.C. 2935.09.
The legal counsel described under R.C. 733.48 goes to great lengths, as Mr. DiCaudo's firm advertises,
I. Ohio law makes the solicitor and city director of law the mayor and municipal court prosecutor
Mr. DiCaudo advertises himself as the prosecutor for the Village of Boston Heights on the law firm's
website. He is not the village's solicitor or city director of law. That job belongs to his law partner, Marshall
Pitchford.
R.C. 2938.13 is an unsuspended general law that instructs the magistrate or judge on which attorney is
authorized by general law to prosecute violations of municipal ordinances and statutes.
In any case prosecuted for violation of a municipal ordinance the village solicitor or city
director of law, and for a statute, he or the prosecuting attorney, shall present the case for the
municipal corporation and the state respectively, but either may delegate the responsibility to
some other attorney in a proper case, or, if the defendant be unrepresented by counsel may with
leave of court, withdraw from the case. But the magistrate or judge shall not permit prosecution
of any criminal case by private attorney employed or retained by a complaining witness.
R.C. 705.11 is under the heading, Village solicitor or city director of law duties.
The village solicitor or city director of law shall act as the legal advisor to and attorney for the
municipal corporation, and for all officers of the municipal corporation in matters relating to their
official duties. He shall prepare all contracts, bonds, and other instruments in writing in which the
municipal corporation is concerned, and shall indorse on each his approval of the form and the
correctness thereof. No contract with the municipal corporation shall take effect until the approval
of the village solicitor or city director of law is indorsed thereon. He or his assistants shall be the
prosecutor in any police or municipal court, and shall perform such other duties and have such
assistants and clerks as are required or provided.
R.C. 733.52 further instructs the Court on which attorney is authorized by general law to prosecute
mayor's court cases.
"The city director of law as prosecuting attorney of the mayor's court shall prosecute all cases
brought before the court, and perform the same duties, as far as they are applicable thereto, as
required of the prosecuting attorney of the county. The director of law or the assistants whom
he designates to act as prosecuting attorneys of the mayor's court shall receive such
compensation for the service provided by this section as the legislative authority of the city
prescribes, and such additional compensation as the board of county commissioners allows."
II. Prosecutors and assistants are appointed
The Defendant acknowledges that R.C. 733.621 authorizes Mr. Pitchford, in his official capacity as the
statutory village's chief legal officer to appoint a law partner as an assistant.
All statutes point to the relationship between the Village and the private lawyer holding an office
authorized under the constitution and state laws as being an appointment that comes with a requirement to be
administered an oath of office.
After an appointment to an office R.C. 3.22 instructs the Court on what shall take place before the
person begins performing the office's duties.
"Each person chosen or appointed to an office under the constitution or laws of this state,
and each deputy or clerk of such officer, shall take an oath of office before entering upon
the discharge of his duties...
R.C. 3.23 is under the heading "Contents of oath of office" and instructs that,
"...the oath of office of every other officer, deputy, or clerk shall be to support the
constitution of the United States and the constitution of this state, and faithfully to discharge
the duties of the office."
R.C. 309.03 requires the "person" appointed prosecutor to obtain and sign a bond, and be administered an
oath of office pursuant to R.C. 3.22 and 3.23. R.C. 733.52 specifically names R.C. 3.22 and 3.23 as additional
mandatory duties imposed upon the "office" of prosecutor.
Mr. Pitchford or Mr. DiCaudo's bonds and oaths are supposed to be deposited with the county treasurer.
The heading is identified as "Bond of prosecuting attorney oath" and remains unsuspended by the general
village's solicitor performs the statutory role of supervisory lawyer over DiCaudo as the statutory
prosecutor of the mayor's court.
Mr. DiCaudo is officially solicitor Pitchford's assistant pursuant to R.C. 705.11, R.C. 733.51, R.C.
733.52, so his claim of being the prosecutor without also being the solicitor on the law firm's website is a
misrepresentation. Disciplinary Rule 5.1 better defines the official and conflicting supervisory relationship
between the two lawyers.
A lawyer shall be responsible for another lawyers violation of the Ohio Rules of Professional
Conduct if either of the following applies: (1) the lawyer orders or, with knowledge of the
specific conduct, ratifies the conduct involved; (2) the lawyer is a partner or has comparable
managerial authority in the law firm or government agency in which the other lawyer practices,
or has direct supervisory authority over the other lawyer, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
The Court should take note that R.C. 733.52 required Mr. Pitchford, in his capacity as the Village's
prosecutor, to perform the same duties, as far as they are applicable thereto, as required of the prosecuting
attorney of the county."
V. The "solicitor" hasn't endorsed a single document DiCaudo filed with the Court
R.C. 705.11 requires that the solicitor prepare all ... instruments in writing in which the municipal
corporation is concerned, and shall indorse on each his approval of the form and the correctness thereof.
The statute further instructs this honorable Court that, No contract with the municipal corporation shall
take effect until the approval of the village solicitor or city director of law is indorsed thereon. He or his
assistants shall be the prosecutor in any police or municipal court.
None of the instruments in writing Mr. DiCaudo has filed with the Court were prepared or indorsed
[sic] by supervisory lawyer Pitchford in the official capacity of solicitor as required by R.C. 705.11.
Even if R.C. 733.51 more aptly applies to the Village under the statutory plan of government upon which
it's organized, the city director of law prepares all instruments in writing, serves as mayor's court prosecutor
and can designate assistants.
All statutes governing the city director of law or solicitor prescribe the R.C. 2938.13 duty for that
appointed official to present the case for the municipal corporation and the state respectively.
A review of the pleadings Mr. DiCaudo has filed with the Court aren't captioned in the name of the
municipal corporation and the state respectively, nor do they indicate the involvement of the solicitor in his
capacity as prosecutor as required by R.C. 2938.13.
All captions point to either the state and DiCaudo, Pitchford & Yoder, respectively, instead of
identifying Pitchford as the appointed solicitor and supervising attorney, and DiCaudo as his appointed
assistant pursuant to R.C. 705.11, R.C. 733.51 and R.C. 733.52.
The form of the documents make no reference to the Village of Boston Heights as the complaining witness
or Pitchford as the solicitor and prosecutor, or DiCaudo as his assistant. Obviously, the law firm cannot be the
complaining witness or substituted as the prosecutor.
VI. Conclusion
This Defendant can find no constitutional amendment, federal or state law that resembles the acts Mr.
DiCaudo is performing while he holds a public office this state's authorized lawmakers created and gave
specific mandatory duties for persons holding it to perform.
From his knowing failure to disclose evidence, to his sham pleadings, to his lying before the tribunal, to
his claim to the Defendant that he is not an official of the village of Boston Heights, though he claims to hold
a statutory office that belongs to the municipal corporation; Mr. DiCaudo operates like a rogue private lawyer
going through great lengths to launch a vigorous attack against a citizen's claim that Boston Heights police
violated laws and his constitutional rights instead of as an administrator of justice.
The private attorney has complied with no constitutional mandate, no federal nor state law, nor the
criminal or civil rules governing this official proceeding; nor the applicable disciplinary rules and local rules of
court. None of his pleadings have been supported with a reference to a single law pursuant to Rule 11, as he
operates in complete disregard to anything that resembles a statute. In violation of the local rules he
contemptuously fails to identify the judge by her full name.
All the statutes cited above cannot be suspended by errant public officials and corrupt private lawyers, or the
Court.
Article 1.18 of Ohio's constitution under the heading Suspension of laws, sets forth the following.
No power of suspending laws shall ever be exercised, except by the General Assembly.
None of the laws, procedural and disciplinary rules, and the mandatory duties associated with them, have
been suspended by the General Assembly of this state. The Defendant cites Dorrian v. Scioto Conservancy
Dist. (1971), 27 Ohio St. 2d 102, 56 O.O. 2d 58, 271 N.E. 2D 834. The Supreme Court of Ohio stated,
"... that "the word 'shall' shall be construed as mandatory unless there appears a clear and
unequivocal legislative intent that [it] receive a construction other than [its] ordinary usage."
Accord State v. Golphin (1998), 81 Ohio St. 3d 543, 545-546, 692 N.E. 2d 608.
The Defendant moves this honorable Court to disqualify private attorney Mr. DiCaudo in his capacity as
an alleged prosecutor for the Village of Boston Heights, and to declare the office void. This renders all his acts
ultra vires and ab initio as he and other judicial officers have failed, from the beginning of his alleged
appointment, to perform the mandatory duties of the prosecutor's office.
The Defendant believes this will be the Court's first step in addressing the harm that has come to thousands
of Ohio motorists who were deceived into believing the village's judicial officers were duly-authorized.
Mr. DiCaudo must be charged with violating Disciplinary Rule 8.4 and obstruction of official business for
his knowing and reckless violation of R.C. 2938.13.
Respectfully,
_________________________________________
Eric Jonathan Brewer, Pro Se
11903 Lenacrave Street
Cleveland, OH 44105
Tel: 216-310-1110
Email: ejon1953@gmail.com
CERTIFICATE OF SERVICE
The Defendant's motion for disqualification and sanctions was delivered by email to
tdicaudo@dpylaw.com, Village of Boston Heights Prosecutor Thomas DiCaudo on this 22nd day of
February, 2016.
Signed __________________________________
Eric Jonathan Brewer
11903 Lenacrave Street
Cleveland, OH 44105
Tel: 216-310-1110
Email: ejon1953@gmail.com