The complaint filed against University Heights Prosecutor Stephanie Scalise
Below is the complaint filed against Stephanie Scalise.
It is unconstitutional and illegal (specifically a violation of ORC 2921.45) for a public official to use the power of their position to deprive someone of a constitutional or statutory right. Ms. Scalise did exactly that when she filed criminal charges against me, for sending this email, which is First Amendment protected speech, openly admitting in an email to my attorney that her motivation for filing the criminal charges was to get me to understand that I can’t criticize, file a complaint, or in her words, “tattle” on a fellow municipal prosecutor to their employer if I don’t like something they did. Unfortunately for Ms. Scalise, the First Amendment ensures that I can do this exact thing, and the government is prohibited from imposing penalties upon me for doing so. The following are the relevant facts and circumstances.
Last summer I received emails from Alix Noureddine, a Beachwood resident and the Cleveland Heights municipal prosecutor, which I believed showed troubling judgement from someone in the important position of prosecutor. On July 13,2020, after multiple emails from Noureddine over a five week period, I sent this email to Cleveland Heights officials, forwarding them the emails Noureddine sent me and expressing my personal opinion his emails showed troubling judgement from someone in the important position of municipal prosecutor.
Stephanie Scalise deemed this email a “criminal act” and filed criminal charges against me for sending it. I am confident the charges will not succeed because with the exception of Ms. Scalise, I doubt there is anyone else involved the criminal justice process, or even anyone who paid attention in 8th grade civics class that doesn’t understand;
The email I sent to Cleveland Heights officials is First Amendment protected speech, regardless of whether someone questions my judgement and decision sending it.
In this country, anyone can send an email (including an elected official like myself), to anyone they choose (including Cleveland Hts. officials), expressing their critical opinion of anyone (including the Cleveland Hts. prosecutor), without it being a crime as the First Amendment prohibits the government from passing laws that make it illegal and/or impose penalties upon someone for sending such an email as it is First Amendment protected speech.
It is illegal and a violation of ORC 2921.45, for a public official (like Ms. Scalise) to use the authority of their position to file criminal charges against someone because they didn’t like that they used their First Amendment protected free speech rights to file a complaint or express criticism of a fellow municipal prosecutor.
The most Scalise has offered to explain why fundamental First Amendment jurisprudence did not render the charges against me unconstitutional as a matter of law is in an email she sent to my attorney where she wrote, “my big picture goal with this whole case is that I am hoping your client will understand that when you’re in public office, you cannot contact people’s employers to ‘tattle’ on something that person did that you didn’t like.”
Imagine if a police officer arrested someone and openly admitted the reason was that he didn’t like that this person used their First Amendment protected free speech rights to file a complaint or “tattle” on another policeman. Of course if this ever happened, the police officer wouldn’t admit their true motivation and would make up a different reason for the arrest. In an email to my attorney, Scalise doesn't even attempt to hide her illegal motivation and writes that her “big picture goal” in filing criminal charges against me is to get me to “understand that when you’re in public office, you cannot contact people’s employers to ‘tattle’ on something that person did that you didn’t like.”
Ms. Scalise has a law degree, is a prosecutor with charging authority and I find it hard to believe that she doesn’t know that elected officials also have First Amendment free speech rights. Not only is it legal for every citizen, including elected officials, to email Cleveland Hts. officials to “tattle” and/or express their critical opinion of one of their employees, such an email is First Amendment protected speech the government is prohibited from imposing penalties upon someone for such speech.
A Cleveland Jewish News article covering this issue reported “Scalise said Burkons’ email to Noureddine was sent to “shut him up.” “That’s illegal,” she said. “It’s illegal in Beachwood. It’s illegal in Shaker Heights. It’s illegal in Chardon. It’s illegal anywhere that we end up having this trial.” Most 8th graders who paid attention in civics class can tell you this statement from Scalise is wrong as they understand that even if the intent of my email to CH officials was to shut Noureddine up, which it wasn’t, it still wouldn’t be an illegal violation of his First Amendment protected free speech rights because the First Amendment only protects speech against official government sanctions or penalties but DOES NOT protect such speech against criticism. In fact, the First Amendment does the opposite as speech expressing criticism of the way someone else exercised their free speech rights, like my email to CH officials expressing criticism of Noureddine, is also First Amendment protected speech.
I find it hard to believe that someone who is a municipal prosecutor doesn’t understand the First Amendment does not protect speech against criticism. Despite this, Scalise filed criminal charges against me for sending an email expressing criticism of Noureddine claiming it was an illegal interference of his First Amendment free speech rights. Since Noureddine doesn’t have a “right” protecting his speech against criticism, it is an impossible argument that I illegally interfered or deprived him of a “right” he doesn’t have. As much as Ms. Scalise seems to believe that public officials, like her and Mr. Noureddine, should have special 1st Amendment protections prohibiting people from criticizing or “tattling” on them, that isn’t how the 1st Amendment works.
The only way my email would have been an illegal interference of Noureddine’s free speech rights is if it contained the threat that I would use the authority of my position as a Beachwood Councilmember to impose official government penalties or sanctions upon him for his speech. Anyone who reads my email to CH officials which Scalise deemed the “criminal act” knows it does not contain such a threat, nor could it as my position as a Beachwood Councilman gives me no power or authority to impose official government penalties upon Noureddine.
Everyone, including Ms. Scalise, has the same First Amendment free speech rights to express criticism of me and my judgement for sending the email to CH officials in any way they choose. She can shout that criticism from the rooftops or take out an ad in any new paper she wants. What Scalise can’t do, is unconstitutional and illegal (specifically a violation of ORC 2921.45) is use the power of her public position to impose an official government penalty upon me for my constitutionally protected speech that she disapproves of. Scalise did this when she filed criminal charges against me because she didn’t like that I used my First Amendment protected free speech rights to criticize or “tattle” on a fellow municipal prosecutor.
Thank you and please do not hesitate to email me at Mburkons@aol.com or call me anytime at 216-832-6771 if you have any questions. I understand that University Heights will have to engage a special prosecutor to review this and make a charging decision due to the obvious conflict of interest. Please let me know how long it is expected to take for that to occur.