Plaintiff asks judge to issue ruling and release 'communication' in J.D. Tomlinson public records lawsuit

Attorney James Barilla and his attorney, Jonathan Rosenbaum, have asked Visiting Judge Thomas Teodosio to immediately rule in his favor in an ongoing public records lawsuit against the Lorain County Prosecutor's Office and county officials over documents Prosecutor J.D. Tomlinson has refused to release since October. The "motion for partial summary judgment" filed Thursday in Common Pleas Court asks Teodosio to rule in Barilla's favor "because there is no legitimate question of fact" that a "communication" that the Prosecutor's Office has in its possession "is a public record as a matter of law," Rosenbaum wrote in a motion on behalf of his client. Barilla filed suit in February after the Prosecutor's Office refused to release documents related to a $100,000 settlement it paid out to Prosecutor J.D. Tomlinson's former girlfriend and director of public relations, Jennifer Battistelli. Tomlinson and Dan Petticord, the assistant prosecutor in charge of Tomlinson's Civil Division, are two of the defendants in Barilla's lawsuit. The other three are Lorain County commissioners Michelle Hung, David Moore and Jeff Riddell. Teodosio previously ruled that Barilla and Rosenbaum were entitled to review the "communication" after he reviewed it "in-camera," or in private, to determine if it should be released. Through his attorneys, Tomlinson has refused to release the "communication" to The Chronicle-Telegram, saying it was too embarrassing for him and Battistelli and had nothing to do with the $100,000 settlement he paid last year to her and her attorney out of his taxpayer-funded budget. It took a ruling by Teodosio for Tomlinson to turn the "communication" over to Barilla and Rosenbaum. Teodosio ruled that Tomlinson and Petticord "had a record that was not produced in response to the public records request within a reasonable time because (Tomlinson and Petticord) sought a protective order regarding the record alleging it was embarrassing or oppressive," Rosenbaum wrote. "By withholding the record and seeking a protective order, (Tomlinson and Petticord) have conceded that the record existed and was not provided pursuant to the public records request," Rosenbaum argued. "As a result, no question of fact can exist regarding whether the record filed with the court was not produced in response to the public record requests, the record was possessed by (Tomlinson and Petticord), and no exception to the duty to produce it as a public record was provided to the court" or Barilla. "Therefore, the only possible issue left for the court to determine is whether the record filed with the court is a public record and that a writ should issue compelling its production as a public record," Rosenbaum wrote, adding that he and his client have been asking for the "communication" since Oct. 25, and that Barilla is entitled to it as a public record. A retired Summit County Common Pleas and 9th District Court of Appeals judge, Teodosio was appointed by the Ohio Supreme Court to hear the case after Lorain County's Common Pleas judges recused themselves to avoid any conflict of interest. Barilla also has asked Teodosio to preserve the Oct. 10 "communication" by filing it with the clerk of courts "under seal or otherwise" so it can be part of the court record and possibly used in an appeal, according to a motion filed Thursday by Rosenbaum. Tomlinson, a Democrat, is up for reelection in November. He is being challenged by Republican Tony Cillo. Tomlinson has accused Barilla, a Republican, and Rosenbauam of being politically motivated to make him look bad in his race against Cillo. He has argued his political opponents would use the embarassing "communication" against him on the campaign trail. Petticord, also a Democrat, is running for Common Pleas judge in November against Republican Giovanna Scaletta-Bremke. One of them will replace Judge James Miraldi, who can't run again due to judicial age limits. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.