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Toledo, Ohio & Lake Erie

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Supreme Court hears protection order case

Oral arguments were heard Wednesday by the Ohio Supreme Court in a case that centers on a civil stalking protection order issued against a Clay Township man.

At issue is whether state law requires a victim to actually experience mental distress or only believe that the stalker will cause the victim physical harm or mental distress, for a court to issue a protection order.

The Ottawa County Common Pleas Court agreed in 2011 with a request by Dorothy Fondessy for a protection order against her neighbor on N. Genoa-Clay Center Road, Tony Simon. The order, which is in effect for five years, directs Simon to stay at least 25 feet away from Fondessy and her husband, Wayne, and not have contact with them.

Simon appealed the decision to the Sixth District Court of Appeals and in April 2013 the appeals court upheld the common pleas court decision. But the court agreed with a motion filed by Simon’s attorney to let the Supreme Court review its decision because there were several conflicting decisions stemming from other appellate courts in the state regarding how protection orders should be issued.

In accepting the case, the Supreme Court determined a conflict exists between the decision in the Simon v. Fondessy case and a 2009 decision by the Seventh District Court of Appeals.

Ohio Revised Code says. “No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.”

Simon’s attorney, Wesley Miller, contended the Sixth District court misinterpreted the law by placing the burden of proof on Simon.

“The court makes Simon accountable because of the age and health of the other party; effectively making mental distress a subjective matter that a person – here Simon – must be concerned about and evaluate before he takes an action or speaks a word,” Miller states in briefs filed with the court.

Ernest Cottrell, attorney for Fondessy, countered that if the Supreme Court were to adopt the actual cause standard for mental distress, many occurrences of psychologically damaging conduct would go unpunished and not rise to the level of protection from the courts because actual mental distress is difficult to prove.

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