IN THE SUPREME COURT OF OHIO
Robert A. Neinast
Petitioner-Appellant,v.Board of Trustees of the Fairfield
County District Library,
Respondent-Appellee.:
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On Appeal from the Fairfield County
Court of Appeals, Fifth Appellate
District
Court of Appeals No. 2010-CA-011
Supreme Court No. 2011-0435
MOTION TO STRIKE PORTIONS OF RESPONDENT-APPELLEE'S MEMORANDUM
IN RESPONSE AND MOTION TO HOLD THE CAUSE
Robert A. Neinast, pro se
8617 Ashford Lane
Pickerington, OH 43147
(614) 759-1601
neinast@att.net
PETITIONER-APPELLANT
DAVID L. LANDEFELD (0000627)
Fairfield County Prosecutor
Jason M. Dolin (0041820)
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 West Main Street, Ste. 101
Lancaster, Ohio 43130
(740) 652-7560
ATTORNEY FOR RESPONDENT-APPELLEE
Now comes the Petitioner-Appellant, Robert A. Neinast, and respectfully moves this Court to strike portions of Respondent-Appellee's (the "Library's") Memorandum in Response, specifically those portions that claim that "Petitioner has failed to follow the procedural requirements necessary to obtain this Court's jurisdiction." These include the final paragraph on page 1, and the section entitled "Petitioner's Appeal is Procedurally Improper" on pages 3 and 4.
Petitioner-Appellant also moves this Court to hold this cause. The Appeals Court below made a partial remand back to the trial court in this case. The result of that remand is now under appeal again at the Appeals Court level and will undoubtedly generate another Appeal and Memorandum in Support of Jurisdiction (or even Certification of a Conflict) before this Court. Consolidating the two appeals would serve judicial economy.
A Memorandum in Support is attached.
Respectfully submitted,
_______________________
Robert A. Neinast
MEMORANDUM IN SUPPORT
The Library's basis for claiming that Petitioner-Appellant's appeal is procedurally improper is
Appellate Rule 26(A) states that "The filing of an application for reconsideration shall not extend the time for filing a notice of appeal in the Supreme Court." Supreme Court Rule II, Section 2 requires that "the Petitioner shall file a notice of appeal in the Supreme Court within 45 days from the entry of the judgment being appealed."
(Memorandum in Response, p. 3). The Library seems to be relying upon copies of the Rules of Appellate Procedure and the Supreme Court Rule of Practice that predate the changes that took effect on July 1, 2010. According to the current App. R. 26(A)(1)(a): "The filing of an application for reconsideration shall not extend the time for filing a notice of appeal in the Supreme Court unless such an extension is provided for by the Supreme Court Rules of Practice." Such an extension is provided for by S.Ct. Pract. R. 2.2(A)(5)(b): "If a timely application for reconsideration is filed in the court of appeals, and the appellant seeks to appeal from the court of appeals entry of judgment, the appellant shall file a notice of appeal within forty-five days of the court of appeals decision denying the application for reconsideration, or if reconsideration is granted, from the subsequent entry of judgment." Neinast properly filed his Memorandum in Support of Jurisdiction within the forty-five days of the court of appeals decision denying his application for reconsideration. Also, of course, if Neinast's appeal to this court had been untimely, the Clerk would have rejected it. S.Ct. Pract. R. 2.2(A)(1)(b).
The Library also seems to be confused as to what exactly is being appealed to this Court. In the decision below, Appeals Case No. 2010-CA-011, Neinast v. Fairfield Cty. Dist. Library Bd. of Trustees, 2010-Ohio-5569, the Fairfield County Court of Appeals affirmed in part, reversed in part and remanded (the reversed portion). Neinast's Memorandum in Support of Jurisdiction very carefully limited itself to the portion of the Appeals Court decision that affirmed the lower court (that is, the finalized issues). In a phone conversation with a Clerk of this Court, Mr. Neinast was assured that if he did not appeal that portion of the Appeals Court ruling within the forty-five day period, he would waive his right to do so.* Mr. Neinast also confirmed with the Clerk that, while the Appeals Court was divested of jurisdiction by the perfection of this appeal to the Supreme Court, S.Ct. Pract. R. 2.2(D)(1), the trial court still retained jurisdiction to consider the remand. The Library somehow seems to think that the instant appeal to the Supreme Court is in regard to the remand (and that somehow Neinast thought he could make a direct appeal to the Supreme Court of the result of the remand, and chides Neinast for not filing the full record from the remand with this Court). That is not the case; the appeal to the Supreme Court is in regard to specifically and only the issues that the Court of Appeals affirmed in its decision.
Thus, all portions of the Library's Memorandum in Response regarding procedural issues should be stricken. That includes the final paragraph on page 1, and the section entitled "Petitioner's Appeal is Procedurally Improper" on pages 3 and 4.
Petitioner-Appellant Neinast also moves this Court to hold the cause. As noted by the Library, on remand the trial court entered judgment against Neinast, saying that the authorization by the General Assembly for libraries to make rules for their proper operation and management includes making footwear rules in response to an unspecified risk of pathogens. On April 26, 2011, Neinast filed an appeal of that decision with the Fairfield County Court of Appeals. Whenever the Court of Appeals makes its own decision regarding that latest trial court judgment, that decision will almost certainly generate some sort of action before this Court. If the Court of Appeals affirms that decision, Neinast will assuredly file a new Appeal and Memorandum in Support of Jurisdiction. If the Court of Appeals reverses that decision, then there will be yet another conflict with the Franklin County Court of Appeals, this time on the scope of authority of library boards.
Thus, holding the present cause for the remand to percolate up again serves the purpose of judicial economy. This court will then have the opportunity to see the case in its entirety and make a single determination of its suitability for this Court's scrutiny. In the unlikely event that the remand portion does not generate a new appeal to this Court, Petitioner-Appellant Neinast will promptly notify this Court so that is can release the hold.
For the above reasons, Petitioner-Appellant respectfully requests that this Court grant both motions.
Respectfully submitted,
_______________________
Robert A. Neinast
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served, by regular U.S. mail, upon Mr. Jason M. Dolin, Assistant Prosecuting Attorney, Attorney for Defendants, 239 West Main Street — Suite 101, Lancaster, OH, 43130, this 26th day of April, 2011.
_______________________
Robert A. Neinast
Footnotes:
* The Library also claims that the Decision of the Court of Appeals was not “a final appealable decision” (p. 3). Such language applies to appeals from trial courts to Courts of Appeal, not appeals to the Supreme Court. [Back]