ACRE Background Paper #l: Otha Nixon - Then, Complaining Witness; Now, Plaintiff
At the beginning of February Yellow Springs resident Otha Nixon sought a haircut in Gegner's Barber Shop. The barber refused him service and Nixon filed an affidavit charging a violation of the village's anti-discrimination ordinance. When the case came up in Mayor's Court, Oegneres attorney filed an affidavit of prejudice and the case was transferred to Greens County Common Pleas Court. The judge of that court set this Thursday as trial date.
Last week the village council met in special session, without Nixon present, and made the decision to instruct their solicitor to attempt to withdraw from prosecuting the case. The rationale offered by council for this action is that, if they had not sought to drop the case, the precedent they would have set would have bound them to prosecute any and all subsequent cases, and this they thought unwise, since they would have no control and they might be spending village funds prosecuting cases that were in sane way "weak."
Last Thursday the judge granted the village its request for release from prosecution and changed the action from a criminal one to a civil one. Thus, had one week in which to find an attorney who would take the case, and that attorney, when found, would have less than a week to prepare Nixon's ease. This also meant that Nixon and his supporters would have to pay the attorney's fee and possible court costs, as well as being open to a possible cross-petition for damages. The barber did file such a counter suit, asking $500, The town had abruptly dropped the whole load of enforcing the village ordinance on the citizen whose civil rights had bean violated.
Prior to the judge's indicating the case would be heard, the village council had not informed Nixon that they did not intend to prosecute his complaint as a criminal case. Only AFTER the trial date had been set did the village have second thoughts - - before that event the village had accepted the plaintiff parts the mayor had issued the warrant and heard the case as the Village vs. Gegner; and the village solicitor had participated in the procedural transfer of the case to the comity court. This initial participation could only have been based on a mistaken policy or on the assumption that the case was not going to be heard.