Tomlinson to appeal visiting judge's sealed rulings in secret sheriff's office criminal probe

ELYRIA — More legal maneuvering happened this week in an ongoing but secret criminal investigation by the Lorain County Sheriff's Office that is believed to be targeting Lorain County Prosecutor J.D. Tomlinson. Two notices of appeal were filed Wednesday in Lorain County Common Pleas Court, the first step before an appeal is to be submitted to the regional Ninth District Court of Appeals. They involve both a secretive criminal probe, as well an ongoing civil case against Tomlinson and other county officials over the disclosure of public records. Tomlinson is being represented in both appeals by his chief of staff, attorney and former Lorain County Judge James Burge. Tomlinson has denied any criminal wrongdoing and said he welcomes a criminal inquiry being conducted by Sheriff Phil Stammitti's office. In the two appeals, Burge announced Tomlinson's intent to appeal two matters recently decided by visiting Judge Thomas Teodosio, who is overseeing one, what could turn into a criminal prosecution of Tomlinson and two, a civil case over documents detailing a financial settlement paid to former Tomlinson girlfriend and employee, Jennifer Battistelli. The court record in the criminal case is sealed from public view, and it remains unknown what kind of charges Stammitti might be asking a special prosecutor and special grand jury to file against Tomlinson. First, Tomlinson is appealing Teodosio's July 19 order granting Stammitti's request to unseal a petition to appoint a special prosecutor and denying Tomlinson's request for a sealed record, a closed hearing and a gag order in the criminal case. In the notice of appeal, Burge wrote that a probable issue for appeal is "whether the (trial) court committed prejudicial error by ordering a hearing on the merits of a petition for the appointment of a special prosecutor and special grand jury to investigate the county prosecutor, without determining the procedure to be followed, or the stand of proof required for the petition to be granted." Secondly, Tomlinson is appealing Teodosio's July 18 decision "which denied the Lorain County Prosecutor's motion for an order dismissing the petition (by) the sheriff for appointment of a special prosecutor and the empaneling of a special grand jury, summarily," according to that notice of appeal. Burge wrote in that notice of appeal that a probable issue for appeal is "whether the county prosecutor has a right to secrecy in the pleadings and proceedings to resolve a petition for the appointment of a special prosecutor" under Ohio law. The notice of appeal indicates that Teodosio stayed his orders pending the outcomes of the appeals. It wasn't known what the time line would be for a decision by the appeals court. All of the records in the pending criminal case, No. 24CR111270, are sealed and not available for public view. Tomlinson, a Democrat, is up for reelection in November. His challenger is Republican Tony Cillo, a veteran former prosecutor in Tomlinson's office. The notices of appeal were filed the day before a hearing was supposed to take place before Teodosio, according to subpoenas sent to a county official and Battistelli, Tomlinson's former director of public relations and one-time girlfriend. Tomlinson admitted publicly for the first time May 8 that he and Battistelli were in a romantic relationship while she was employed by his office. Tomlinson has denied there was any "salacious conduct" or "scandal" that resulted in him paying Battistelli a $100,000 settlement from taxpayer funds in his budget after she resigned from his office in August. The Lorain County Board of Commissioners approved the settlement in October. What is also now known are the names of some of those who might be called to testify in any upcoming court hearings related to Stammitti's ongoing criminal probe and request for a special prosecutor and grand jury. Battistelli was served a subpoena to appear in court at a hearing on Thursday that did not end up taking place. Her attorney, Kenneth Lieux, said she had no comment on the subpoena. Lorain County Commissioner Michelle Hung, a Republican, also confirmed to the Chronicle that she had been served July 16 with a subpoena to appear Thursday in Common Pleas Court for that hearing. And local defense attorney Michael Stepanik confirmed Friday he also got a subpoena to appear in court on Thursday, but was told he wasn't needed and that the hearing was canceled. It wasn't clear or known why those three were subpoenaed to testify at the hearing, and what they might have added to the record. Without specifically naming Tomlinson as a target, Stammitti has said only that his agency, the Auditor of State's Office and the FBI are involved in an investigation in Lorain County. The sheriff made that announcement May 8. Stammitti declined Wednesday to comment on the allegations. The attorney representing him in the process is former elected Franklin County prosecutor Ron O'Brien, who also has declined to comment on the sheriff's criminal investigation. Teodosio, a retired Summit County Common Pleas and 9th District Court of Appeals judge, was assigned May 24 by the Ohio Supreme Court to handle both the criminal case and the ongoing civil lawsuit by attorney James Barilla of Avon Lake seeking to obtain documents related to the Battistelli settlement. Teodosio was appointed at the request of Judge Raymond Ewers after all Lorain County Common Pleas judges recused themselves from the matter to avoid conflicts of interest. The lone details and description of the criminal case on the Ohio Supreme Court's website states it is a "criminal case filed by the Lorain County Sheriff against the Lorain County prosecutor et al" — et al meaning there could be other defendants — and notes that the sheriff has asked for a special prosecutor and grand jury to be appointed. And despite Stammitti's statement that the FBI was assisting in his investigation, the FBI would not confirm to The Chronicle-Telegram whether agents are conducting an investigation in Lorain County. Cleveland FBI spokeswoman Susan Licate told a reporter that her agency's protocol is to not publicly confirm the existence of a criminal investigation. The civil case revolving around the Battistelli affair was filed in February, with Barilla asking a judge to order Tomlinson's office and the commissioners to produce records related to Tomlinson's settlement with Battistelli. It also named Dan Petticord, who is Tomlinson's Civil Division chief, and commissioners Hung, David Moore and Jeff Riddell as defendants. Teodosio on Tuesday ordered Petticord dismissed as a respondent/defendant from the civil case, according to a copy of a ruling obtained by the Chronicle. Petticord is not an elected official and under Ohio law, "there is no statute expressly imposing a duty on an assistant prosecutor to oversee, maintain, or produce records" for the Prosecutor's Office or Board of Commissioners, according to Teodosio's ruling. The case still is being argued before Teodosio. A "smoking gun" in that case would be a "communication" sent to Tomlinson by Battistelli's former attorney ahead of the settlement last year, a "communication" that allegedly details allegations against Tomlinson that he has fought to keep out of the public eye. The Chronicle has requested the "communication" multiple times, and been denied every time by Tomlinson's office. Teodosio recently ruled that Barilla and his attorney, Jonathan Rosenbaum, were allowed to review the "communication," but also ordered them not to share it publicly. The Auditor of State's office has subpoenaed records from Lorain County related to the Battistelli settlement, according to a copy of two subpoenas sent to Tomlinson's office last year and reviewed by the Chronicle. Tomlinson has said that Barilla, Cillo and Rosenbaum all oppose him politically and that Barilla and Rosenbaum are seeking only to embarrass him during his reelection campaign. Also named in recent, unconfirmed rumors of a federal investigation into alleged criminal activity involving Lorain County elected officials were two sitting county commissioners and a candidate for the seat on the Board of Commissioners that will be vacated by Hung at the end of the year. So far, no one in county government or federal law enforcement has been willing to talk about or provide evidence of any such investigation. County commissioners Moore and Riddell and Marty Gallagher, a candidate for the Lorain County Board of Commissioners, all denied receiving "target letters" informing them they are under investigation by federal authorities. A target letter is a courtesy letter sent to a person by a U.S. Attorney's Office, often ahead of a federal grand jury being convened to consider criminal charges, to inform them that they are the "target" of an investigation. It can also be sent to witnesses who have been subpoenaed to testify in front of a federal grand jury. The three men, all Republicans, issued their denials when asked specifically by a Chronicle reporter about the rumors, with Gallagher calling it "most absurd thing I've ever heard." A message seeking comment on whether target letters have gone out to Lorain County officials was left Tuesday with a spokesperson at the U.S. Attorney's Office in Cleveland. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.