Thursday, March 3, 2011

Case ‘closed’ without trial, without verdict

The Knox County Court of Common Pleas lists John Freshwater’s case—in which he was appealing his firing from Mount Vernon City Schools—as being “closed.”

Freshwater’s appeal never went to trial.

The case disposition is described on the court's website as being that of “Transfer to another judge or court.” asked Freshwater whether he was given an opportunity to challenge the attempt to close his case at the county level. His wife, Nancy, wrote back, “We knew nothing about it; we didn't even know the request was made.”

Attorneys for the Mount Vernon Board of Education had filed a “Notice of Removal” with the county court Wednesday morning. In the filing, the attorneys told the court the “case has been removed to the United States District Court for the Southern District of Ohio.”

(See here for a copy of the documents. TIFF 339 KB )

The attorneys did not include in their filing a copy of any decision made by a federal judge that shows the transfer of the case was approved.

Although the county court website has an entry that says the case is “finished” and “filed away,” there is no document—such as a decision by county judge Otho Eyster—which corresponds to that entry.

Knox County Clerk of Courts, Mary Jo Hawkins, told that “there is no document for the entry” which says the case is finished. She explained that the entry “is just our notation.”

Included in the documents the school board’s attorneys filed is a copy of the request, apparently filed in federal court, for transfer of the case.

In the request, the school board's attorneys argue: “This case is subject to removal under 28 U.S.C. § 1441(a) and (b), because the district court has original jurisdiction over this action based on federal question jurisdiction under 28 U.S.C. §1331.”

Freshwater had submitted his appeal to the county court pursuant to Ohio Revised Code 3319.16.: “Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located.”

The request for removal of the case was reported on by the Mount Vernon News on Wednesday in the article “Board asks to move case to federal court.” Reporter Pamela Schehl wrote, “Attorney Sarah Moore, of the law firm Britton, Smith, Peters & Kalail, said the board filed papers asking to move the Freshwater case to federal court.” asked board members whether the request to move the case to federal court was made directly by the school board or with the prior knowledge and consent of the board. Board president, Dr. Margie Bennett, replied via e-mail: “Prior to the removal of the case to federal court, the Board met in executive session with legal counsel to discuss the case. The details of those discussions are a matter of attorney-client privilege, which no individual board member can waive or disclose.”

UPDATE 3-8-2011:

Federal judge Gregory Frost on Monday signed a memorandum saying that the case should be transferred to his docket.

(See here for a copy of the memorandum. 137 KB PDF)

Previous coverage related to Frost:

April 18, 2010 — “Christian Family Objects to Bible in Classroom”

July 31, 2010 — “Judge to Reconsider Previously Issued Sanctions”

Aug. 4, 2010 — “What’s in the Trash, Stays in the Trash, According to Judge”

Oct. 21, 2010 — “Freshwater Lawsuit Dismissed”

UPDATE 3-13-2011:

Judge Frost on Thursday issued an order questioning whether the federal court has jurisdiction over Freshwater’s case:

“This Court, however, questions whether it has subject matter jurisdiction over this action based upon § 3319.16 of the Ohio Revised Code and, if it does possess jurisdiction, whether it is proper to exercise it in view of the abstention doctrine. Thus, the Court is inclined to sua sponte remand this action. Defendants may have until March 28, 2011, to provide a brief explaining why this action should not be remanded.”

(See here for a copy of the order. 22 KB PDF.)

For additional documents related to this matter, see the website of the National Center for Science Education.

UPDATE 4-5-2011:

Judge Frost on Tuesday issued an order remanding the case back to the county court:

“First, this action was an on-going state judicial proceeding prior to removal to this Court. Plaintiff filed this action in the proper state court as required by § 3319.16 of the Ohio Revised Code. Next, those proceedings certainly implicate important state interests […].Finally, the state court is quite competent to hear Freshwater’s complaints of constitutional violations.”

(See here for a copy of the order. 29 KB PDF.)

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