ELYRIA — The Ohio 9th District Court of Appeals has refused to decide whether or not a diversion program being run by Lorain County’s General Division judges is legal, according to court documents filed this week by county Prosecutor Dennis Will’s office.
Will has asked the Ohio Supreme Court to intervene in the long-running dispute and to declare the 4-year-old program unconstitutional and a violation of a state law that he contends allows only prosecutors to run diversion programs.
A defendant who is given diversion pleads guilty, but the plea isn’t accepted, and if they successfully complete the program, which typically lasts about a year, the charge against them is dropped.
Will operates his own diversion program, but Administrative Judge James Burge has said the judges find that program too limiting because Will effectively gives veto power to victims, who have the final say over whether a defendant can be admitted to the prosecutor-run program.
That can lead to unequal punishments for two people accused of the same crime, Burge has argued.
Will has said he believes victims should have a say in what happens to those who wronged them.
The judges insist their program is legal and contend that if Will believes it isn’t, his concerns can be addressed in the appeals court. They have asked the Supreme Court to throw out Will’s challenge because prosecutors have yet to exhaust other avenues of getting a ruling on the legality of the program.
Prosecutors have appealed repeatedly to the 9th District, but the judges there have yet to address whether the program, which has been used more than 20 times, is proper.
“(Will’s) lack of success in these appeals is not the issue raised by (Will) in his Complaint, but rather, the Ninth District Court of Appeals’ refusal to address the validity or constitutionality of the trial court’s program,” Assistant County Prosecutor Elizabeth Lindberg wrote. “In other words, (Will’s) success or failure in the appellate court is not the cause of (Will’s) lack of another adequate legal remedy; it is the failure and/or refusal of the Ninth District to address the pertinent issue at all which causes the lack of a remedy.”
In a separate filing, Lindberg asked the Supreme Court to use a technicality to throw out a request from the judges to dismiss the Will’s challenge based on the court filing so far.
Lindberg wrote that under the Supreme Court’s rules the judges were required to file that request at the same time they files a response to Will’s lawsuit.
Instead, she wrote, that request was filed six days after the judges responded.