IN THE FAIRFIELD COUNTY, OHIO COURT OF COMMON PLEAS


Robert A. Nienast
Plaintiff,
-vs-
Board of Trustees of the Fairfield
          County District
Defendant.
:
:
:
:
:
:
:
:
:


Case No. 09 CV 00657

Judge Martin


MEMO CONTRA OF DEFENDANT BOARD OF TRUSTEES
OF FAIRFIELD COUNTY DISTRICT LIBRARY TO
MOTION OF PLAINTIFF ROBERT A. NEINAST TO CONVERT
THE EVIDENTIARY HEARING TO A NON-ORAL HEARING


Defendant Board of Trustees of the Fairfield County District Library ("the Library Board") files this memo in opposition to the Plaintiff's motion to convert the evidentiary hearing scheduled by this Court for December 16, 2010 to a non-oral hearing. This Court ordered the evidentiary hearing pursuant to the decision of the Court of Appeals in Neinast v. Board of Trustees of The Fairfield County District Library, Case No. 2010 CA 011 (5th District) ("Neinast I").

In Neinast I the Court of Appeals, inter alia, remanded this case back to the Fairfield Common Pleas Court. In so doing, the Coutt of Appeals indicated that an evidentiary hearing was necessary to address the issues that were not resolved by the appeal. In particular. in Neinast I the Court of Appeals stated that:

...the matter subject to hearing and fair debate and a day in court is this library's basis for the [footwear] rule.

... We remand this case to the trial court to determine if in fact appellee can establish reasons for the footwear rule that applies specifically to appellee [the Library Board]. See Neinast I, at 13. (underlining added).

A plain reading of the above makes clear that the Library Board must he granted an opportunity to show if "if fact" – if it can show facts – that establish reasons for the footwear rule. Such an "in fact" opportunity, of necessity, requires an evidentiary hearing. There is no other way to logically read the Court of Appeals opinion in Neinast I.

Moreover, the Plaintiff argues that a non-oral hearing is required because this Common Pleas Court "did not examine...the factual basis for Neinast's Motion for Summary Judgment." Neinast Memo in Support at 2. That assertion is simply incorrect. Indeed, in its Judgment Entry filed Fehruary 16, 2010 (copy attached) inter alia denying the Plaintiff's Motion for Summary Judgment, this Court stated that:

Lastly, the court turns to Plaintiff's [Neinast's] Motion for Summary Judgment. After reading Plaintiff's Motion for Summary Judgment, Defendant's Memorandum Contra and Plaintiff's Reply, reviewing the pertinent law and considering the evidence available to the court pursuant to Civ. R. 56, the court finds that granting summary judgment in favor of Plaintiff is not appropriate. Reasonable minds can come to but one conclusion regarding the claims raised by Plaintiff in his Complaint, and viewing the evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the Plaintiff...Thus, Plaintiff's Motion for Summary Judgment is DENIED. (See Entry at 9 – 10). (underlining added).

Based upon the above it is clear that this Court, in rejecting the Plaintiff's motion for summary judgment, in fact examined the evidence proffered by the Plaintiff in support of its motion. The purpose of remand by the Court of Appeals in Neinast I is to have this Court conduct an evidentiary hearing limited to the remaining issues outlined by that Court (ie: "...if in fact appellee can establish reasons for the footwear rule"); not to relitigate issues already decided by this Court. Based upon the above, the Plaintiff's motion to convert the evidentiary hearing to a non-oral hearing should be denied.

Finally, as the Plaintiff notes in its motion, the Plaintiff has filed a motion for reconsideration with the Court of Appeals. While the Library Board had previously requested a continuance of the evidentiary hearing to a date in February, based upon the Plaintiff's motion for reconsideration and the delay that might attend such a motion, the Library Board respectfully modifies its request to have the evidentiary hearing date continued to a date suitable to the Court in late March or to a date thereafter suitable to this Court.


  Respectfully submitted,
/s/     Jason M. Dolin          
Jason M. Dolin (0041820)
Assistant Prosecuting Attorney
239 West Main Street, Ste. 101
Lancaster, Ohio 43130
Attorney for Defendant


CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Memo Contra was served on the individual listed below this 30th day of November, 2010 by regular U.S. Mail, postage prepaid.

Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147

  /s/     Jason M. Dolin          
Jason M. Dolin