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August 28, 2014
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Judge Hein rules in favor of The Early Bird, again!

GREENVILLE – The Early Bird and Brothers Publishing Company, LLC has once again earned a victory in the Darke County Court of Common Pleas. For a third time, The Early Bird has been ruled a Newspaper of General Circulation. The ruling was necessary for the newspaper to continue to run and seek legal advertising.

For each argument presented by Civitas Media, Judge Jonathan P. Hein, Darke County Court of Common Pleas, found The Early Bird clearly met each objective under Ohio law. “The Court finds that the Legislature clearly intended free newspapers to be added as a method to meet general circulation purposes,” said Hein. “The expanded page size and substantive content requirement of revised R.C. 7.12(A)(1) and (2) were included to increase the likelihood that the newspaper would attract the public to also view governmental information and notices.” Hein continued, “The Early Bird is certainly not a “shopper” advertisement flyer as pejoratively described by Civitas Media, LLC.”

Following the announcement, Keith Foutz, owner and publisher, stated “We were pleased that the court system and Judge Hein has once again ruled in our favor. Judge Hein was exceptionally thorough in his ruling stating unequivocally The Early Bird is a newspaper of general circulation, meeting the legislative requirements and qualifies to run legal advertising for Darke County.”

The publisher continued, “We were equally pleased when Judge Hein went on to state what has become obvious to the residents of Darke County ‘The Early Bird is certainly not a shopper advertisement flyer’ as previously claimed by Civitas.”

Foutz concluded, “We have been confident since this process began that the court system would rule in our favor and we are extremely pleased and happy to have this so clearly stated by Judge Hein. We now look forward to helping the city, county, villages and townships save substantially on their expense of running legal advertisements through utilization of the locally owned and operated Early Bird.”

This ruling marks the third time The Early Bird has been deemed a Newspaper of General Circulation. The first ruling came on Sept. 10, 2012 when the Darke County Prosecuting Attorney concluded the weekly newspaper was a Newspaper of General Circulation. Seven days later Civitas Media, LLC, which owns and operates The Daily Advocate, filed a protestation letter arguing against the ruling. Judge Hein eventually ruled in favor of The Early Bird.

Civitas Media disagreed with the judge’s decision and took the case to the 2nd District Court of Appeals. That court did not rule against The Early Bird, but did send the case back to Judge Hein’s court for mediation between the two parties and for the trial court to consider an affidavit submitted on behalf of Civitas Media by Kathleen Chandler, former state representative and member of the Local Government Public Notice Task Force.

Regarding the affidavit, Judge Hein said in his ruling, “This decision places the trial court in the curious quandary of violating the rules of evidence since the affidavit does not possess an evidentiary foundation for admission nor does it allow for cross examination by the opposing party. Were the trial court allowed to apply the rules of evidence at hearing herein, the affidavit would not be admitted.” Although the judge allowed the affidavit at the direction of the Court of Appeals, he pointed out it held “little evidentiary weight.”

Eric Brand, attorney for Brothers Publishing, pointed out the judge spent a great deal of time and thought reviewing the material and did an excellent job reviewing the law. Brand also praised the Civitas attorneys in noting Gary Leppla did an excellent job with his presentation, but the law wasn’t on his side.

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