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Protection order case goes to state supreme court

The Sixth District Court of Appeals has agreed to a motion filed by a Clay Township man to let the Ohio Supreme Court review the court’s decision that upholds a civil stalking protection order against him.

The appeals court agreed to the motion by Tony Simon that its decision in August – when it upheld a protection order issued by the Ottawa County Common Pleas Court - conflicts with decisions of several other appellate courts in the state.

The protection order was sought by Dorothy Fondessy for herself and her husband, who are neighbors of Simon on N. Genoa-Clay Center Road.

The Ohio Constitution directs appeals court judges – when a judgment that addresses the same issue conflicts with a judgment by any other appeals court – to “certify the record of the case to the supreme court for review and final determination.”

“Accordingly, we find that there is a conflict with our decision…and the decisions of the Seventh, Fourth and Ninth District Courts of Appeals…on the issue of whether Revised Code…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 CSPO,” the Sixth District court wrote in its opinion.

The Sixth District Court noted in its earlier decision it has consistently held that state law doesn’t “require that the victim actually experience mental distress, but only that the victim believes the stalker would cause mental distress or physical harm” to justify the issuance of a protection order.

A majority of the appeals courts follow that interpretation, the ruling says.

The Ohio Supreme Court has set three requirements for a case to be certified: judgments conflict with other appeals court decisions on the same question; the alleged conflict must be on a rule of law, not facts of the case, and the opinion of the appeals court must clearly state the law which is in conflict with other courts’ decisions.

The Fondessys had filed a motion against that filed by Simon.

The protection order went into effect in November 2011 and directs Simon to stay at least 25 feet away from the Fondessys and not have any contact with them.

The order is in effect for five years.

A property line dispute between the parties was resolved with a survey but confrontations between Simon and Dorothy Fondessy continued, according to court documents.

In April, Simon filed a lawsuit in Ottawa County Common Pleas Court against the township police chief and a patrol officer, alleging malicious persecution. That lawsuit, which is still pending, also names the Fondessys as defendants.

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