COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Robert A. Neinast
Plaintiff-Appellant,v.Board of Trustees of the Fairfield
County District Library,Defendant-Appellee.
Appeal No. 2010-CA-11
Trial No. 09 CV 0657
BRIEF OF APPELLANT ROBERT A. NEINAST
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, Ohio 43147
TABLE OF CONTENTS
Table of Authorities iv Assignments of Error Presented for Review vi Statement Regarding Summary Judgment vii Issues Presented for Review viii Statement of the Case 1 Facts 1 Argument 10 1. A court abuses its discretion when it fails to strike a Motion for Summary Judgment that is untimely filed without an explanatory motion demonstrating excusable neglect 10 2. The trial court improperly relaxed the requirement of mutuality of parties when it ruled that collateral estoppel applied in the instant lawsuit 12 3. The trial court improperly applied the test for determining collateral estoppel in relaxed mutuality cases: the issues in the instant case are different than those of the previous cases 16 4. A rule that is proper under specific circumstances is not proper when those circumstances are not present 17 5. The Library has not been delegated the authority to make a shoe rule 18 6. The shoe rule violates individual liberty guaranteed by the Ohio Constitution 23 This is a Hard Case 26 Conclusion 29 Addendum Judgment Entry and Opinion Appendix A Decision Granting Defendants’ Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, Franklin County Court of Common Pleas No. 04CVH06-6341, May 27, 2005 Appendix B Curran v. City of Youngstown, Case No. 186118 (Mahoning County Court of Common Pleas, Apr. 21, 1969) Appendix C “Children, families learn about animals at main library,” Lancaster Eagle-Gazette, June 29, 2009 Appendix D Footwear (or lack thereof) Injury Cases Appendix E
TABLE OF AUTHORITIES
1989 Op. Att'y Gen. No. 89-031 20 Broz v. Winland (1994), 68 Ohio St.3d 521, 629 N.E.2d 395 14, 15 Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377 19 Business Data Systems, Inc. v. Figetakis (9th Dist. 2006), 2006-Ohio-1036 11 Cincinnati v. Correll (1943), 141 Ohio St. 535 23 Cincinnati Insurance Co. v. Nickles Bakery (Dist. 2, 2003), 2003-Ohio-47 15 Curran v. City of Youngstown, Case No. 186118 (Mahoning County Court of Common Pleas, Apr. 21, 1969) 24 D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172 18, 20, 21 Decision Granting Defendants’ Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, Franklin County Court of Common Pleas No. 04CVH06-6341, May 27, 2005 8 Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389 23 Gilbraith v. Hixson (1987), 32 Ohio St.3d 127, 512 N.E.2d 95 14 Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 443 N.E.2d 97 13, 14, 16 Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 369 N.E.2d 776 13 Hopkins v. Dyer (March 3, 2002), 5th Dist. No. 2001AP080087 12 Miller v. Lint (1980), 62 Ohio St.2d 209 12 Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040 4 Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585 4, 5, 6, 7 O'Nesti v. DeBartolo Realty Corp. (2007), 2007-Ohio-1102, 113 Ohio St.3d 59 13 Piersant v. Bryngelson (8th Dist. 1989), 61 Ohio App.3d 359 11 Pollack v. Watts (Aug. 10, 1998), 5th Dist. No. 97CA0084 11 Preterm Cleveland v. Voinovich (10th Dist. 1993) 89 Ohio App.3d 68 23 Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn. (1st Dist. 1994), 96 Ohio App.3d 558 22 Sears v. Cincinnati (1972), 31 Ohio St.2d 157, 285 N.E.2d 73 13 State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 117 N.E. 6 20 State, ex rel. Henderson, v. Schuele, 25 Ohio St.2d 179 20 State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530 18 State v. Betts (Mun. Ct. of Franklin Cty, 1969), 21 Ohio Misc. 175, 252 N.E.2d 866 25 State v. Craig (3rd Dist. 1969), 19 Ohio App.2d 29, 249 N.E.2d 75 25 State v. Stouffer (10th Dist. 1971), 28 Ohio App. 2d 229, 276 N.E.2d 651 26 State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932 14 Steele v. Hamilton County Community Mental Health Board (2000), 90 Ohio St.3d 176 25 Thompson v. Wing (1994), 70 Ohio St.3d 176, 637 N.E.2d 917 3, 16 Whaley v. Franklin County Board of Commissioners (2001), 2001-Ohio-1287, 92 Ohio St.3d 574 10 Weinfeld v. Welling (5th Dist. 2005), 2005-Ohio-4721 24
ASSIGNMENTS OF ERROR
First Assignment of Error: The Trial Court erred by not striking Defendant’s Motion for Summary Judgment as untimely.
Second Assignment of Error: The Trial Court erred by granting Defendant’s Motion for Summary Judgment.
Third Assignment of Error: The Trial Court erred by denying Plaintiff’s Motion for Summary Judgment.
STATEMENT REGARDING SUMMARY JUDGMENT
Summary judgment was inappropriate as a matter of law on the undisputed facts.
ISSUES PRESENTED FOR REVIEW
A court abuses its discretion when it fails to strike a Motion for Summary Judgment that is untimely filed without an explanatory motion demonstrating excusable neglect.
This issue is related to the First Assignment of Error.
The trial court improperly relaxed the requirement of mutuality of parties when it ruled that collateral estoppel applied in the instant lawsuit.
This issue is related to the Second Assignment of Error.
The trial court improperly applied the test for determining collateral estoppel in relaxed mutuality cases: the issues in the instant case are different than those of the previous cases.
This issue is related to the Second Assignment of Error.
A rule that is proper under specific circumstances is not proper when those circumstances are not present.
This issue is related to the Second and Third Assignments of Error.
The Library has not been delegated the authority to make a shoe rule.
This issue is related to the Third Assignment of Error.
The shoe rule violates individual liberty guaranteed by the Ohio Constitution.
This issue is related to the Third Assignment of Error.
Statement of the Case
This is an appeal of the February 16, 2010, Judgment Entry of the Fairfield County Court of Common Pleas granting the motion for summary judgment of Defendant/Appellee, the Board of Trustees of the Fairfield County District Library (“Library”), and denying the motion for summary judgment and the motion to strike the Library’s motion for summary judgment of Plaintiff/Appellant Robert Neinast (“Neinast”).
Neinast’s lawsuit challenged a rule in the Library’s Code of Conduct that says “Shirt and shoes are required for entry to any library facility.” While the Ohio Revised Code allows library boards to make and publish rules for the “proper operation and management” of the library, Neinast contended that, in the absence of any hazards or fiscal risk to the Library, such a shoe rule is not proper. Furthermore, Neinast contended that the shoe rule violated his personal liberty under the Ohio Constitution for two reasons: it is arbitrary and capricious, and that a rule to protect person from themselves falls outside of the police power. Neinast had filed, and lost, similar but different lawsuits against the Columbus Metropolitan Library (“CML”). In its granting of summary judgment for the Library, the trial court relaxed the usual requirement for mutuality of parties and, despite different issues being involved, dismissed Neinast’ lawsuit as being collaterally estopped.
Mr. Neinast has gone barefoot nearly exclusively for nearly 13 years, including over a wide variety of surfaces, including a very large number of venues, both indoors and outdoors, and including numerous public accommodations and governmental buildings. Through his experience, Neinast knows what does and does not constitute hazards to bare feet. He knows just the sorts of conditions that are hazardous to the barefooted and those which are not. The inside of a Library is about as safe an environment as is possible, regardless of footwear. Furthermore, he has used all of the above locations without any commotion or question of “decorum.” (Neinast Aff. ¶6).
Neinast is a card-holder of the Fairfield County District Library, and used the Library barefoot at least four times. On the fourth time was told that the Library required shoes and that he would have to leave. In none of these visits did Neinast see any hazards on the premises, even though he was looking for them (Neinast Aff. ¶13). In none of these visits was the library environment interrupted in any way by a lack of decorum or other commotion (Resp. to Interr. ¶21).
After Neinast was asked to leave the Library, he and Ms. Marilyn Steiner, the Director of the Library, exchanged a number of letters and emails, which led to the Library Board revisiting the shoe policy at their May 20, 2008 meeting. The shoe rule was upheld, and the stated reason for doing so was “decorum.” (Resp. to Interr. ¶2). Neinast then requested that he be allowed to give a presentation to the Board, which he did on October 21, 2008. That presentation (Neinast Aff. Exhibit 1) presented numerous examples of barefooted Ohioans being within the bounds of decorum, and also included a section of the safety of bare feet (and some hazards of shoe-wearing), and included a number of scientific papers as attachments.
After his presentation, the Board discussed the shoe rule and Neinast received an email from Ms. Steiner saying that the Board now had safety concerns (Neinast Aff. Exhibit 2). Neinast emailed to Ms. Steiner an essay he wrote concerning the relative safety of bare feet and shoes (this essay went into greater detail than the talk before the Board) which showed that bare feet present no particular hazard (Neinast Aff. Exhibit 4). This essay included 16 scientific papers as attachments. In that return email, Neinast also included a comprehensive study of barefoot- or footwear-related injury lawsuits found using Lexis (Neinast Aff. Exhibit 5, Appendix E to this Brief). That study showed that while barefoot injury lawsuits can occur, the number of shod injury lawsuits is overwhelming by comparison.
In its February 17, 2009 meeting, the Board then passed a resolution to “uphold and support” their code of conduct policy. According to the affidavit of Ms. Steiner, the policy was upheld “for the stated reason that it is the fiscal responsibility of the Board to reduce and eliminate any risks which may potentially produce costly liability.” However, the Library acknowledges that they have an insurance policy protecting them from injury due to negligence (Resp. to Interr. ¶6), and that the Health Department does not require shoes in public buildings (Resp. to Interr. ¶12). The Library is also unaware of any conditions in their buildings that would constitute a hazard to barefooted patrons (Resp. to Interr. ¶¶9-11). The Library acknowledges that Neinast’s presence in the Library, barefooted, neither disrupted the library environment (Resp. to Interr. ¶21) nor presented any danger to any other patron (Resp. to Interr. ¶22). Additionally, the Library allows children to sit upon the very floors they claim are too dangerous for bare feet (Plaintiff’s Memo Contra Defendant’s Motion to Dismiss, Attach. 2, Appendix D to this Brief).
This case is complicated by earlier lawsuits that Neinast filed against the Columbus Metropolitan Library. Since the Fairfield County District Library defended itself, not by justifying its policy on the facts, but by using collateral estoppel, those lawsuits came into play. Although the more important issue regarding collateral estoppel is the mutuality of parties and whether that should be relaxed in this case, it is also necessary for collateral estoppel to apply that the same facts or issues were “actually and directly litigated in the prior action.” Thompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917. The previous litigation against CML is detailed and confusing, and it might be difficult to ascertain just what points were or were not considered between the federal and state lawsuits. Here we attempt to lay that out clearly and concisely.
The Federal Columbus Metropolitan Library Lawsuit
Neinast first filed his 42 U.S.C. Section 1983 suit in the Franklin County Court of Common Pleas, Case No. 01-CVH-3104. This suit asked for relief under three theories: the shoe rule deprived him of his right to receive information (part of freedom of speech); the shoe rule deprived him of a liberty interest in his personal appearance under the U.S. Constitution; and the shoe rule deprived him of due process since it had never been promulgated by CML’s board of trustees as required under state law1 and even if the board had adopted the rule, they had no delegated authority to do so. CML removed this case to federal court, Case No. C2-01-442, and this is the case that led to two Federal Court opinions: Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040; Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585.
There are three points from those opinions that are of particular relevance to the instant case: 1) those Federal Courts made the factual determination that CML contained hazards to barefooted patrons; 2) those Federal Courts made the legal determination that under the rational basis review appropriate for questions of personal appearance under the U.S. Constitution, CML met that standard since shoes would protect patrons from the supposed hazards in CML and since shoes would protect CML from tort claims; and 3) those Federal Courts refused to address any of Neinast’s state claims.
The Federal Courts made their determination of hazards to barefooted persons without any evidence to that effect, and despite evidence to the contrary. This is typical of the attitude of the occasional unschooled store owner, but it is not to be expected from an impartial and unbiased judiciary. Their determination was not made by a full trial with the presentation of actual evidence, but was decided by summary judgment. Furthermore, the Sixth Circuit Court of Appeals did nothing more than take certain incident reports that had nothing to do with bare feet, and then speculate that bare feet were in danger:
Here, the Board has provided incident reports documenting various hazards to barefoot patrons, including the presence of feces on the floor of the restroom and in the reading area (JA 133, 153, 163, 176, 197, 212, 250, 252, 254, 256, 257), vomit on the floor of the restroom and in the children's area (JA 170, 224), broken ceiling tiles on the floor of the restroom (JA 134), splintered chair pieces in the children's area (JA 140), drops of blood on the floor of the restroom (JA 184), urine in the elevator, on the floor of the bathroom, on a chair in the reading area, and on the floor of the reading area (JA 161, 165, 168, 176, 266, 276, 291), and broken glass in the lobby (JA 185).
Neinast, 346 F. 3d at 593. Notice that there was no evidence presented that any of these actually presented a danger to a barefooted patron. For instance, evidence was presented that at one point the Columbus Metropolitan Library had a broken chair on the floor. There was no evidence presented that this was a danger to a barefooted patron (or any more of a danger to a barefooted patron than a shod patron, since a shod person could trip over it just as easily, assuming that none of these people would notice a broken chair in the middle of a room in the first place). The Sixth Circuit Court just assumed it. Similarly, that court presented as justification the case of a little barefooted girl who had the top of her toe scraped by a faulty door, yet ignored a similar instance in which a sandaled woman had a similar thing happen. These two incidents did not prove the need for a shoe rule; they proved the need for safer doors. The Sixth Circuit Court also assumed that urine (which is sterile) on the floor was a danger to a barefooted patron without any evidence in the record to that effect, and despite evidence from Neinast to the contrary. The Sixth Circuit Court assumed that feces on the floor of a bathroom were a similar danger (even though any pathogens will not penetrate intact skin), again without any evidence in the record to that effect, and despite evidence from Neinast to the contrary. Neinast walks on glass all the time, uses restrooms all the time, and in general goes everywhere barefoot without danger or difficulty. (Neinast Affidavit, ¶¶2-6, 8.) When presented with that information, the Court ignored it (even though, in summary judgment, all evidence should be interpreted in favor of the person against whom summary judgment is invoked).
The Sixth Circuit also determined, in regards to Neinast’s liberty interest in his personal appearance, because of the already-determined “hazards” in the library, that the rational basis standard of review was satisfied by the shoe rule:
the Board has made the reasonable determination that the requirement that patrons of the Library wear shoes is necessary to protect both “the health and safety of Library patrons, who may be harmed in the Library if allowed to enter barefoot,” and “the economic well-being of the Library, by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented.” Consequently, the Board's requirement that patrons of the Library wear shoes satisfies rational basis review.
Neinast, 346 F.3d at 596. Given the fact that it was shown that CML had insurance to cover such liability, that Court did not explain just how the economic well-being of CML would be affected. Again, it was pure speculation without evidence, and counter to the rules regarding the granting of summary judgment.
Finally, the Federal Courts refused to address any of Neinast’s state law claims:
[T]he issue of whether the Board's delegation of authority to the Executive Director to establish the Eviction Procedures was proper is a matter of state law. Section 1983, upon which Neinast bases his claim, authorizes courts to redress violations of “rights, privileges, or immunities secured by the Constitution and [federal] laws” that occur under color of state law. “The statute is thus limited to deprivations of federal statutory and constitutional rights. It does not cover official conduct that allegedly violates state law.” . . . Neinast's claim turns upon a question of state law — namely, the amount of rulemaking authority the Board properly can delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983.
Neinast, 346 F.3d at 597. Thus, the resolution of any state law issues, including issues regarding the Ohio Constitution, was left open. It should also be noted that any issue regarding statutory immunity of CML from tort claims was never addressed. (See Plaintiff’s Motion for Summary Judgment, pp. 16-17.)
The State Columbus Metropolitan Library Lawsuit
Neinast filed his second lawsuit in the Franklin County Court of Pleas in order to specifically get the state law issues addressed: was the shoe rule invalid because it had been promulgated by CML’s Executive Director instead of the Board of Trustees, and, if it had been created by the Board in an open meeting, would that have been an usurpation of the legislative function since the Board was not specifically delegated the responsibility to make a shoe rule? This of course raised an issue of res judicata since all parties were the same as in the original lawsuit.
During discovery, CML disclosed that the Board had just passed a resolution formally adopting the shoe rule in an open meeting and Neinast amended his complaint to address that. This prompted the Court of Common Pleas to rule that
This Court concludes that Plaintiff is barred from asserting any legal claim or issue which was determined, or which could have been determined, in the prior federal litigation against the Library. That covers everything except the adoption of the Consumer Code,2 which occurred four months after that federal litigation was completed. In addition, Mr. Neinast is collaterally estopped from relitigating factual finding made by the federal courts. Facts determined in the prior lawsuit are binding now, in deciding the one legal issue of state law not previously addressed, because those earlier federal decisions were between exactly the same parties and the Plaintiff had an ample opportunity to develop the facts in that prior lawsuit.
Decision Granting Defendants’ Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, Franklin County Court of Common Pleas No. 04CVH06-6341, May 27, 2005, p. 7. (Emphasis added.) (Appendix B to this Brief.) Thus, the second lawsuit was restricted to determining whether the Board had the authority to create the shoe rule, and that second lawsuit was required to accept as fact that CML contained material hazardous to the barefooted on its floors. The result of the state lawsuit rested upon the court’s interpretation of O.R.C. §3375.40(H), which authorizes a board of library trustees to
Make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, including rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county.
(Emphasis added.) Since the State Court was required to accept the factual conclusions of the Federal Court, even though there was no actual evidence in the record to support those factual conclusions, the State Court decided that the shoe rule was “proper.”
To summarize, here are the relevant issues related to the lawsuits against CML:
The federal lawsuit determined that there were hazards in CML that were dangerous to barefooted patrons, and that the specific presence of these hazards justified the shoe rule.
The Federal Courts made their determination of hazards without any evidence in the record that the conditions in CML were actually hazards to those with bare feet.
Neinast’s personal liberty, under the U.S. Constitution, was not infringed.
The Federal Courts made no determination of any state law issues.
The state lawsuit determined, based upon the factual finding of the Federal Courts, that the Board of Trustees was authorized to make the shoe rule.
The issue of statutory immunity was never addressed by either Federal or State Courts.
The state lawsuit did not examine whether Neinast’s personal liberty was infringed under the Ohio Constitution, and it particularly did not examine whether rules that purport to do nothing more than protect people from themselves legitimately fall under the police power of the state.
Additionally, the following summarizes the undisputed material facts, as determined during discovery:
The Board originally upheld the Library’s footwear policy for reasons of “decorum.”
After Neinast presented the Board with additional safety information, the Board consulted their attorney, who informed them of Neinast’s previous lawsuits. At that point they started to say that the reason for the policy was the “fiscal responsibility of the Board to reduce and eliminate any risks.”
The Library contains no hazards to barefooted patrons.
The Library allows children to sit on their floors.
High heels and other footwear present hazards to patrons of equal or greater danger to patrons than bare feet.
The Health Department has no rule requiring footwear in public buildings.
The Library’s insurance policy contains no restriction requiring that patrons wear shoes, and no exclusion of coverage for an injury from a barefooted patron.
The Library has statutory immunity from tort litigation.
The presence of a barefooted patron was not disruptive to the Library environment.
The presence of a barefooted patron presented no danger to any other patron.
1. A Court Abuses Its Discretion When it Fails to Strike a Motion for Summary Judgment that is Untimely Filed without an Explanatory Motion Demonstrating Excusable Neglect.
There is a slightly confusing history to this issue. In the trial court’s Scheduling Order of July 28, 2009, the date of October 30, 2009 was set as the date for all dispositive motions. On October 29, the Library filed a Motion to Dismiss based up collateral estoppel. Neinast filed a Memo Contra on November 12. On December 9, the trial court, sua sponte, converted the Library’s Motion to Dismiss to a Motion for Summary Judgment, citing Civ.R. 12(B)(6). As part of that conversion order, the court ordered supplemental memoranda. Neinast filed a Motion for the Court to Amend its Entry on December 14, pointing out that such a conversion was inappropriate.
The Library’s Motion to Dismiss simply could not be construed as a Civ.R. 12(B)(6) motion. Civ.R. 12(B)(6) motions must be made before a defendant answers: “A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” The Library had not only Answered the Complaint, it had even Amended those Answers. If anything, its Motion to Dismiss had to be construed as a 12(C) motion for judgment on the pleadings. “A Civ.R. 12(C) motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted.” Whaley v. Franklin County Board of Commissioners (2001), 2001-Ohio-1287, 92 Ohio St.3d 574, 581. The motion for judgment on the pleadings is the motion that is similar to a motion to dismiss for failure to state a claim upon which relief can be granted, but occurring after the pleadings are closed. Civ.R. 12(C).
The trial court had no authority to convert the Library’s Motion to Dismiss into a Motion for Summary Judgment. “[T]he trial court improperly converted Appellee’s motion into a summary judgment motion as ‘[n]o mechanism exists under the civil rules to convert a Civ.R. 12(C) motion to one for summary judgment[.]” Business Data Systems, Inc. v. Figetakis (9th Dist. 2006), 2006-Ohio-1036, ¶17. See also Piersant v. Bryngelson (8th Dist. 1989), 61 Ohio App.3d 359, 363:
Further, this court can find no authority to support the beliefs of counsel that a motion made pursuant to Civ.R. 12(C) can be converted to a motion for summary judgment. This theory is mistaken.
The language of Civ.R. 12(C) does not provide for conversion. Cf. Civ.R. 12(B)(6).
Piersant is also cited with approval by the Court of Appeals of Fairfield County in Pollack v. Watts (Aug. 10, 1998), 5th Dist. No. 97CA0084.
The trial court had the authority, via Civ.R. 12(B)(6), only to convert a motion to dismiss for failure to state a claim upon which relief can be granted, and the Library’s motion was clearly not a Civ.R. 12(B)(6) motion.
The trial court agreed with Neinast’s reasoning, and in its January 8, 2010 entry, vacated the conversion. However, the Library filed a Motion for Summary Judgment on January 7, and the trial court also ordered, sua sponte, that Neinast file his Memo Contra that Motion by January 22.
The trial court had no authority to accept the Library’s Motion for Summary Judgment, as pointed out in Neinast’s January 14th Motion to Strike the Library’s Motion for Summary Judgment. The motion was untimely filed without leave. Civ.R. 6(B)(2) is quite clear that, “after the expiration of the specified period” during which an act can be done, the court “upon motion,” may “permit the act to be done where the failure to act was the result of excusable neglect.” See also Miller v. Lint (1980), 62 Ohio St.2d 209, 214. As per the trial court’s order of July 29, 2009, never vacated or modified, all dispositive motions were to be filed by October 30, 2009. A Motion for Summary Judgment is a dispositive motion. January 7, 2010 is after October 30, 2009. In order to file its Motion for Summary Judgment, the Library was required to accompany it with a motion for leave to file it, and that motion needed to demonstrate excusable neglect. The Library did none of that. Its Motion for Summary Judgment should have be struck.
See also Hopkins v. Dyer (March 3, 2002), 5th Dist. No. 2001AP080087:
While this court is in general agreement with the universal practice of allowing trial courts broad discretion in settling procedural matters, such discretion, as evidenced by Civ.R. 6(B), is not unlimited, and under the circumstances * * *, some showing of “excusable neglect” was a necessary prelude to the filing of the answer.
However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.
The trial court abused its discretion by not striking the Library’s Motion for Summary Judgment as untimely without leave.
2. The Trial Court Improperly Relaxed the Requirement of Mutuality of Parties When It Ruled that Collateral Estoppel Applied in the Instant Lawsuit.
For collateral estoppel to apply, all parties must either be the same or in privity with each other. The Library accepted that it was not in privity with the Columbus Metropolitan Library, against whom Neinast had pursued previous lawsuits in an effort to remove CML’s shoe rule. However, there are a very few exceptions to this relaxation of the requirement of mutuality, and the instant case does not fall under those few exceptions. The Library asked the trial court to create a new exception, which the court did even though the particulars of this case did not fit the standards for recognizing new exceptions.
The general rule for collateral estoppel to apply is that the previous action must have been “between the same parties or their privies.” O'Nesti v. DeBartolo Realty Corp. (2007), 2007-Ohio-1102, 113 Ohio St.3d 59 at ¶7. This is called mutuality-of-estoppel. However, in Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 443 N.E.2d 978, the Ohio Supreme Court did discuss and allow for the relaxing of this mutuality requirement, when “justice would reasonably require it”. Id., 2 Ohio St.3d at 199. It discussed mutuality because it had already relaxed mutuality in Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 369 N.E.2d 776, without explicitly acknowledging it. In Hicks, the City of Cincinnati denied that they owned the Cincinnati General Hospital, even though they had argued, and prevailed, that they did own it in a previous lawsuit, Sears v. Cincinnati (1972), 31 Ohio St.2d 157, 285 N.E.2d 73. The Goodson Court did not look kindly upon Cincinnati trying to have it both ways.
In its discussion in Goodson, however, the Ohio Supreme Court did impose restrictions upon when the requirement of mutuality could be relaxed. First of all, “[t]he burden of pleading and proving the identity of issues rests on the party asserting the collateral estoppel.” Goodson, 2 Ohio St.3d at 198. It stated that such exceptions to mutuality must occur “upon the basis of serving justice within the framework of sound public policy.” Id. at 202. (Emphasis added.) The Goodson Court also cautioned against relaxing the mutuality requirement when the supposed savings in time and effort associated with collateral estoppel would not occur: “It seems that these procedures would often offset any savings derived from collateral estoppel, and may indeed increase the total amount of litigation, negating one of the prime supportive arguments, i.e., the economy of the judicial process.” Id., at 198. (Emphasis added.) The Goodson Court was also quite concerned about relaxing mutuality when the benefits from doing so do not outweigh some other costs: “The benefits garnered from applying collateral estoppel in any cause must be balanced against the costs associated with its application. The major risk linked to such an application is that of an erroneous determination in the first case.” Id., at 202-203. (Emphasis added.) In footnote 14, the Court then quoted, with approval, from 18 Wright, Miller & Cooper, Federal Practice & Procedure 142, Section 4416:
The dangers of issue preclusion are as apparent as its virtues. The central danger lies in the simple but devastating fact that the first litigated determination of an issue may be wrong. The risk of error runs far beyond the proposition that most matters in civil litigation are determined according to the preponderance of the evidence. The decisional process itself is not fully rational, at least if rationality is defined in terms of the formally stated substantive rules. Considerations of sympathy, prejudice, distaste for the substantive rules, and even ignorance or incapacity may control the outcome. Trial tactics are consciously adapted to these concerns, but efforts to reduce the irrationality may fail or backfire and efforts to exploit it may succeed.
Note particularly that, even after discussing relaxing mutuality, the Court did not do so in Goodson, saying, “we hold that nonmutual collateral estoppel may not be used to preclude the relitigation of design issues relating to mass-produced products when the injuries arise out of distinct underlying incidents.” Id., at 204.
There appears to be only one other case in which the Ohio Supreme Court has relaxed mutuality. In Gilbraith v. Hixson (1987), 32 Ohio St.3d 127, 512 N.E.2d 956, the Court said that the establishment of paternity in an earlier suit, agreed to by the father, could not be re-litigated by that same father. However, it did not relax mutuality in State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932, in which the administrative DUI hearing did not preclude re-litigating that question of DUI in a criminal proceeding, and it did not relax mutuality in Broz v. Winland (1994), 68 Ohio St.3d 521, 629 N.E.2d 395. In Broz,
The legal issue we are asked to decide is whether a determination made in a declaratory judgment action between an insurance company and its insureds binds persons injured by the insured's negligence who are not parties to the declaratory judgment action. For the reasons which follow, we hold that injured persons not parties to a separate declaratory judgment action are not bound by such decision, and thus are not precluded from litigating the issue of insurance coverage in an R.C. 3929.06 supplemental proceeding.3
Id., 68 Ohio St.3d at 523. Of particular note in Broz is the Court’s concern about the directed verdict in the preceding case:
In ruling on a motion for a directed verdict, the court must construe the evidence most strongly in favor of the party against whom the motion is made and must give that party the benefit of all reasonable inferences that may be drawn from the evidence. Civ.R. 50(A)(4). This the court did not do. Whether Melissa had a reasonable belief that she was entitled to use the car is a jury issue.
Id., 68 Ohio St.3d at 526. (Emphasis added.)
The instant case is one of those cases in which the earlier courts did not construe the evidence most strongly in favor of the party against whom the motion was made. In fact, the Federal Courts simply assumed facts not in evidence (saying, as already pointed out, for instance, that urine on the floor was a hazard to bare feet without any evidence demonstrating that). The instructions from the Ohio Supreme Court are that “[t]he benefits garnered from applying collateral estoppel in any cause must be balanced against the costs associated with its application.” In the instant case, there is no benefit garnered from applying collateral estoppel. As a declaratory judgment lawsuit asking for an interpretation of state law, there is no finality in the trial court’s ruling based on collateral estoppel. Any other person who wishes to use the Fairfield County District Library barefooted (and Neinast knows quite a few) could (and may) file their own declaratory judgment lawsuit and not be subject to the threat of collateral estoppel. The same cannot be said about any other case in which the Ohio Supreme Court has relaxed mutuality. For instance, in Gilbraith, supra, it is not as if some other plaintiff could come forth to challenge the paternity the way another plaintiff can come forth to challenge the Library’s shoe rule. What would provide finality is a judgment on the merits. Furthermore, the Goodson Court made it clear that a relaxation of mutuality could only be allowed based “within the framework of sound public policy.” Neither the Library nor the trial court has demonstrated any sound public policy for relaxing mutuality in the instant case.
3. The Trial Court Improperly Applied the Test for Determining Collateral Estoppel in Relaxed Mutuality Cases: The Issues in the Instant Case Are Different that those of the Previous Cases.
The trial court notes that the Ohio Supreme Court has set forth a three-part test for applying issue preclusion, also known as collateral estoppel, in Thompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917:
Collateral estoppel applies when the fact or issue (1) was actually and directly litigated in the prior action, . . .
However, the issues in this case were not actually and directly litigated in the prior actions. It does, however, take a close reading of the opinions in the earlier cases to see that.
The facts are different: Even if one accepts that the previous lawsuits resulted in the finding of hazards in the Columbus Metropolitan Library (despite a lack of such evidence), that says nothing about any fact-finding of hazards in the Fairfield County District Library. Based upon the discovery in this case, the Library was unaware of any hazards to bare feet in their Library, and in fact are so confident of the conditions of their floors that they allow children to sit upon them during storytime. The fact of whether Fairfield County District Library has hazards to bare feet on their floors was not “actually and directly litigated in the prior action.” Collateral estoppel cannot apply.
The issue is different: The Federal Courts most specifically did not rule on any state issues. See pp. 6-7, supra. The State Courts most specifically limited themselves to addressing the issue of whether, given the fact that hazards had supposedly been found in the CML, a shoe rule was thus “proper.” Nowhere did the State Courts address the issue that the Ohio Constitution protects Neinast’s liberty interest in what he wears, and nowhere did they address the issue that the police power does not extend to protecting persons from themselves. See pp. 7-8, supra. Thus, this Ohio Constitutional issue was not “actually and directly litigated in the prior action.” Collateral estoppel cannot apply.
The trial court erred by granting the Library’s Motion for Summary Judgment for reason of collateral estoppel.
4. A Rule That is Proper under Specific Circumstances is not Proper when those Circumstances are not Present.
In Neinast’s previous lawsuit, the State Courts ruled that, under the specific circumstances found in the Columbus Metropolitan Library, the footwear rule was “proper.” However, in the instant case, none of those specific circumstances apply. The Library is unaware of any hazards on their premises, and in fact are perfectly happy allowing children to sit on their floors. The Library claims that the purpose of their footwear rule (once they realized that their “decorum” excuse was impotent) is “for the stated reason that it is the fiscal responsibility of the Board to reduce and eliminate any risks which may potentially produce costly liability.” However, they presented no evidence that their footwear policy did so. If there are no hazards, then there can be no risk which may potentially produce costly liability. If they are covered by insurance, then there liability is contained. If they have statutory immunity from tort litigation, then they have no liability. Furthermore, if it is truly “the fiscal responsibility of the Board to reduce and eliminate any risks which may potentially produce costly liability,” then their first order of business would have been to ban high heels and other suspect footwear in the Library, for Neinast provided their board with an extensive list of lawsuits related to wearing such footwear. That the Library only focuses on bare feet shows that its rule is just a pretext for imposing its cultural prejudices.
If the word “proper” is to mean anything, it must mean that the Library cannot make up rules for imagined non-existent conditions. A low speed limit that might be proper under high-traffic urban conditions would be quite improper on a clear, straight rural highway. A footwear rule that might be proper in a crowded big-city library would be quite improper in a less-crowded, well-maintained library like the Fairfield County District Library. The trial court erred by granting the Library’s Motion for Summary Judgment for reason of collateral estoppel since the different factual basis of this case was not litigated in any prior action. Also, the trial court erred by not granting Neinast’s Motion for Summary Judgment since, without any evidence backing up the Library’s supposed justification for their footwear rule, it cannot be proper.
5. The Library has not been delegated the Authority to make a Shoe Rule.
A Library Board only has such power as is granted to it by the General Assembly. Any delegation of the legislative power must be accompanied by standards and a discernible public policy statement. “The legislative power of the state is vested in the General Assembly by Section 1, Article II of the Ohio Constitution, and it may not transfer these vested legislative functions unless it has provided sufficient standards within which a board or administrative agency may make subordinate rules.” State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 535. (Emphasis added.) This principle is made clear in the syllabus of D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172: “Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly.” “[A] regulatory authority must still rest upon a discernible public policy declaration by the General Assembly of the need of such regulations in the statutes it has enacted and the delegation of authority to the agency for implementation.” Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379. (Emphasis added.)
In addition to providing these standards, it is important that the General Assembly have demonstrated an intent to regulate an area. As the Burger Court put it,
The focus here is not upon the power of the General Assembly itself to regulate in the area reached by the regulation. Rather, it is whether the General Assembly, in the statutory scheme of liquor regulation it has adopted, has manifested an intention to regulate in the area reached by this regulation and delegated to the commission the power of implementation.
Id., at 365. (Emphasis added.) There is no intent demonstrated here that libraries be able to instill their particular brand of “decorum” upon their patrons, nor that they should be able to act as some sort of super Health Department.
The intent of the legislature can be seen by reading O.R.C. Chapter 3375 as a whole. It is clear that the legislature wants library services to be available to the citizens of Ohio to the maximum extent possible. It has devoted an entire Chapter of the Ohio Code to this purpose. It has created the State Library Board, which should make grants to “[e]nsure every resident of Ohio access to essential public library services.” (O.R.C. § 3375.82). It even recognizes that some counties will be able to provide better library services than others, and wants citizens of those counties to have access to those better services. Thus, libraries may make “rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county.” O.R.C. § 3375.40(H). The Revised Code emphasizes access to library services, not denial of them. The Library is a creature of statute, and thus “has only such powers as are provided in the statute, and such other powers as are reasonably necessary to the accomplishment of the purposes of the board.” (1989 Op. Att'y Gen. No. 89-031, quoting 1924 Op. Att'y Gen. No. 2003, p. 652). The 1989 opinion goes on to say:
It does not, however, establish the requisite authority necessary for a creature of statute, such as a county library district board of trustees, to permit a payroll deduction merely upon agreement between the employer and employee, subject to revocation by the employee. Such authority must be otherwise granted by statute. (Emphasis added.)
So must authority for a shoe rule be otherwise granted by statute. See also, regarding a pension board, State, ex rel. Henderson, v. Schuele, 25 Ohio St.2d 179 (Ohio 1971) (“The state board is a creature of statute. Its powers and its duties are established by statute. It can exercise no power or discretion not invested in it by statute. Consequently, it has only the duties imposed upon it by statute.”). The Library has no duty, and no power, to create general health, safety, or lawsuit regulations, nor to decide what constitutes improper dress.
The General Assembly has not established any policy at all regarding bare feet; there is not a single word regarding them in the entire Revised Code; the Library is dictating public policy. Furthermore, “the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it.” (Emphasis added.) D.A.B.E., 90 Ohio St. 3d at 259, quoting State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6. There is no hint that the General Assembly intended that the Library be empowered to exclude otherwise well-behaved patrons based upon the Library’s perception that bare feet are not sufficiently decorous for a library, or that they constitute a health hazard to the patron. The General Assembly has manifested no intent that libraries should exhibit the same antipathy to hippie dress that those store owners did so long ago.
The grant of authority to “make and publish rules for the proper operation and maintenance of the free public library” requires that those rules be directly related to running a library. It is not a blanket authorization for general rulemaking. The Library has not been granted “substantive regulatory authority” (See D.A.B.E., syllabus, ¶3). (See also, 1977 Op. Att'y Gen. No. 77-091, saying that a library has no authority to expend library funds on voter registration since it is not specifically authorized by statute.) They cannot legitimately make a policy determination that bare feet are somehow improper in a public building, or a policy decision that bare feet (but not high-heels or flip-flops) should be banned as unsafe, or a policy decision that only bare feet cause tort issues. They cannot do so without explicit or implicit authorization from the legislature, and, if there is any doubt as to any such authorization, that doubt should be resolved against the Library. The shoe rule is qualitatively different from all of the other regulations in the Library’s Code of Conduct. All of the other regulations either protect the Library’s collection from damage, prohibit activities that disturb other patrons, or mandate that the Library be used for its intended purpose. Only the shoe rule prohibits a non-disruptive mode of dress and is totally unrelated to library functions. The Library has not said, and cannot say, what it is about bare feet that are antithetical to a library environment.4
There can be no doubt that bare feet do not disrupt the library environment. Neinast obtained his library card with disrupting the Library. He used the Library many times without disrupting it. The Library concedes that he did not do so (Resp. to Interr. ¶21). Furthermore, there is clearly no issue with using other public governmental facilities barefoot. Neinast has gone barefoot in the Statehouse, the Franklin County Courthouse, the Kinneary Federal Courthouse in Columbus, the Stewart Federal Courthouse in Cincinnati, the Columbus Police Department Building, the Hall of Justice in Lancaster (including their law library), the Ohio Historical Society, Columbus buses (COTA), DMV offices, Port Columbus, Houston International Airport, the Sarasota-Bradenton Airport, LAX, the Smithsonian, the U.S. Capitol Building, and the Chicago Field Museum (Neinast Aff. ¶5).
The Ohio Constitution requires that rulemaking be confined within well-defined limits. As the Court of Appeals put it in Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn. (1st Dist. 1994), 96 Ohio App.3d 558, 561:
In the words of Justice Cardozo in his dissenting opinion in Panama Refining, which dissent is cited with approval in Matz, the statute must define policy so that the rule is ‘canalized within banks that keep it from overflowing.’ Matz [v. J. L. Curtis Cartage Co.], 132 Ohio St. at 280, 8 O.O. at 45, 7 N.E.2d at 225. When the rule is not ‘unconfined and vagrant’ it is a permissible delegation of legislative authority.
In other words, there must be some sort of way to determine from the enabling statute whether the agency has exceeded its authority. The whole purpose of discernible public policy statements and standards is to be able to tell when a rule exceeds the authority of an agency. If any sort of rule at all can be promulgated, as occurs through a plenary grant, then how can rules be considered “canalized” or confined? If the Library has been authorized to regulate the decorum of its patrons, what are the standards that it is supposed to use to determine whether any particular style of dress is “proper?” Are earrings on men allowed? Tattoos? Green hair? Nasal piercings? If this Court can find no discernible public policy statement from the General Assembly giving the Library Board the power to ban any of those, then it must equally find that the Library Board does not have the power to ban bare feet. And it does no good to proclaim that the Library’s power is plenary. Aside from the fact that there is no way to distinguish which decorum rules might be acceptable, a plenary grant of power is clearly unconstitutional as an illegal delegation of the legislative power.
The shoe rule is an unconstitutional usurpation of the legislative power by the Library Board.
6. The Shoe Rule Violates Individual Liberty Guaranteed by the Ohio Constitution.
The shoe rule is a police power regulation, in that it purports to protect the health, safety and welfare of the public. Regarding the validity of police power regulations, “[t]o be a valid police regulation it must have a clear and substantial relation to a proper object of the police power, and must not be arbitrary, discriminatory, capricious or unreasonable and must bear real and substantial relation to the subject sought to be obtained, namely, the health, safety, morals, or general welfare of the public.” Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389, 397. See also Cincinnati v. Correll (1943), 141 Ohio St. 535. The shoe rule violates personal liberty guaranteed under the Ohio Constitution for two reasons: it falls outside the proper scope of the police power, and it is arbitrary, capricious, unreasonable, and does not bear a real and substantial relation to its supposed purpose.
Sections 1 and 2, Article I of the Ohio Constitution make it quite clear that “every person has inalienable rights under natural law which cannot be unduly restricted by government,” Preterm Cleveland v. Voinovich (10th Dist. 1993) 89 Ohio App.3d 684, 691, and in the recognition of that natural law, “the Ohio Constitution confers greater rights than are conferred by the United States Constitution.” Id. The police power is limited to protecting the general welfare of “society as a whole”, Correll at 538, and does not include restricting a person’s liberty unless that person’s actions have “foreseeable consequences of causing harm to others.” Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 46. (Emphasis added.) As Thomas Jefferson put it:
Of Liberty then I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add “within the limits of the law,” because law is often but the tyrant’s will and always so when it violates the right of an individual.
“Political Writings By Thomas Jefferson,” edited by Joyce Appleby and Terence Ball, Cambridge University Press (1999), p. 224, Letter to Isaac H. Tiffany, April 4, 1819. (Emphasis added.) Weinfeld v. Welling (5th Dist. 2005), 2005-Ohio-4721, ¶42, also makes the same point:
Personal liberty includes not only freedom from physical restraint, but also the right ‘to be let alone’; to determine one’s mode of life, whether it shall be a life of publicity or of privacy; and to order one’s life and manage one’s affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.
This principle, and its specific application to bare feet, was recognized back in the 1960s and 1970s, when some concerned busybodies wanted to pass an ordinance for the streets of San Francisco. Said City Attorney Thomas M. O’Connor:
Unless the proposed legislation can be justified as protecting the general public from disease or injury, legislation designed solely to protect that portion of the populace who desire to roam the streets barefooted cannot be justified as a legitimate exercise of the police power.
“Footloose in San Francisco,” The San Francisco Chronicle, April 3, 1969, p. 3.
The city of Youngstown actually did pass an ordinance prohibiting bare feet on certain of its city streets. That ordinance was declared unconstitutional in Curran v. City of Youngstown, Case No. 186118 (Mahoning County Court of Common Pleas, Apr. 21, 1969). Said Judge Rigelhaupt:
Coming now to the issue in this case as to whether or not the ordinance in question is constitutional, it is quite obvious that it is not.
* * *
The Court further finds that the ordinance is unconstitutional because it violates the settled constitutional doctrine that a state’s police power can be properly exercised only where there is a reasonable relationship to the public health, safety, morals, or welfare, which does not exist in this case.
(Emphasis added.) (Appendix C to this Brief.) Even if one believes, despite the lack of evidence, that there is some sort of hazard in Neinast’s going barefoot, whether Neinast wears shoes or not does not affect the public at all.
Finally, the Ohio Supreme Court has made it clear: “Our belief in the principle that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,’ is reflected in our decisions.” Steele v. Hamilton County Community Mental Health Board (2000), 90 Ohio St.3d 176, 181. (Internal citations removed.) The shoe rule clearly impinges on Neinast’s right to determine for himself what he considers safe for himself and on his right to manage his affairs as he wishes, and it does not affect others in any way, as the Library acknowledged (Resp. to Interr., ¶¶21-22). The shoe rule falls outside of the police power.
These principles can be seen in action when the issue of motorcycle helmets was examined by the courts. Ohio’s motorcycle law was held unconstitutional in a Municipal Court, which said,
We must conclude that § 4511.53 Revised Code is designed only for the protection of the individual motorcyclist. Whether or not a motorcyclist wears a helmet and goggles is a matter of concern solely to the individual involved. Included in man’s “liberty” is the freedom to be as foolish, foolhardy or reckless as he may wish, so long as others are not endangered thereby.
State v. Betts (Mun. Ct. of Franklin Cty, 1969), 21 Ohio Misc. 175, 184, 252 N.E.2d 866, 872. (Emphasis added.) Even when a Court of Appeals in a different District upheld the motorcycle helmet law, it was very careful to base that decision upon the risk to others:
We believe that with the great increase of motorcycles on the highways, a motorcyclist who loses control of his vehicle because he is struck on his bare head by an object, constitutes a hazard to other users of the highway who may be struck by a motorcycle which has gone out of control.
State v. Craig (3rd Dist. 1969), 19 Ohio App.2d 29, 33, 249 N.E.2d 75, 77.5 The current status of the motorcycle helmet law is that the General Assembly amended it so that it only applies to minors, recognizing the significant liberty interest involved for adults. See O.R.C. § 4511.53(B). Again, Neinast’s being barefooted poses no risk to others, and it is hard to see how any supposed lack of “decorum” hurts others, either. The shoe rule violates his personal liberty.
The shoe rule is also arbitrary and capricious. That the Library bans only bare feet without giving a second thought to the hazards of high heels, flip-flops, and sandals clearly demonstrates that capriciousness. What we have here is a cultural prejudice, a myth, being uncritically accepted without any reasoned analysis. High heels are considered okay because we see them every day, and their risks have been internalized. Bare feet are considered bad because they are rarely seen out in public, but that is hardly a reason for making up ridiculous justifications for banning them when there is no evidence of any harm.
This is a Hard Case
A case like this is actually a hard case. It is hard because almost everybody thinks they already know the answer and have no need for facts or evidence. Members of this Court have no doubt seen the rare “No Shirt, No Shoes, No Service” sign and may think that there is some valid reason for the sign. Members of this Court may think that there was some rash of injury lawsuits that prompted the sign. However, the already mentioned examination of the footwear-related lawsuits shows no such occurrence. “No Shirt, No Shoes, No Service” signs originated merely as a discriminatory reaction to barefooted hippies in the 1970s. As historian Terry H. Anderson put it in “The Movement and the Sixties,” Oxford University Press (1995), p. 283:
Citizens reacted to the hippie threat in many ways. Country-western singer Merle Haggard condemned the counterculture in his hit tune, “Okie from Muskogee,” and singer Anita Bryant held “rallies for decency.” Southern Methodist University officials attempted to stop mail posted to the campus address of Notes from the Underground, while a group of alumni and students threatened violence if the “filthy sheet causing embarrassment” did not stop publication. Businessmen across the country put up door signs, “No Shirt, No Shoes, No Service,” while Marc’s Big Boy in Milwaukee hired a cop to make sure that no one with beads, beards, flowers, sandals, long hair, or funny glasses was allowed inside to buy a double hamburger.
These signs were not put up because of some epidemic related to bare feet; they were not put up to provide supposed protection to the bare feet of citizens; they were not put up because of a surge in lawsuits related to bare feet. They were put up because of hostility towards hippies. Nearly forty years later, most folks generally do not remember why such signs appeared, and they rationalize that it must have been because of hazards or health or safety, but that is simply not the case.
Nor can covering bare feet truly be an example of “decorum.” Flip-flops expose just as much foot to public view as bare feet (since the sole of a barefooted person is usually on the ground, and the sole of a person wearing flip-flops is occasionally exposed to public view as the flip-flops flip and flop). Yet, because of this prejudice against hippies, people assume that it is the natural order of things that bare feet somehow violate decorum or are dangerous. And these assumptions are extremely difficult to get beyond. Just look at how the Library Board ignored the overwhelming evidence presented to them by Neinast, and essentially decided to uphold their shoe rule because they thought they had the power to do so, not because there was any reason to do so besides their undefined sense of “decorum”.
Not only that, but “decorum” is a poor standard upon which to base a rule. It is constantly changing. In his talk before the Library Board (Neinast Aff., Exhibit 1), Neinast detailed how bare feet were formerly quite common and accepted. There is even an interesting anecdote about libraries and bare feet:
Matthew Arnold and the Barefooted Newsboy
Mr. Matthew Arnold (says the Boston Herald) was greatly struck by the democratic government of our reading room when he was in Boston. He came in here one day and saw a little barefooted newsboy sitting in one of the best chairs, enjoying himself apparently for dear life. The great essayist was completely astounded. “Do you let barefooted boys in this reading-room?” he asked. “You would never see such a sight as that in Europe. I do not believe there is a reading-room in all Europe in which that boy, dressed as he is, would enter.” Then Mr. Arnold went over to the boy, engaged him in conversation, and found that he was reading the “Life of Washington,” and that he was a young gentleman of decidedly anti-British tendencies, and, for his age, remarkably well informed. Mr. Arnold remained talking with the youngster for some time, and as he came back to our desk, the great Englishman said: “I do not think I have been so impressed with anything else that I have seen since arriving in this country as I am now with meeting this barefooted boy in this reading-room. What a tribute to democratic institutions it is to say that instead of sending that boy out to wander alone in the streets, they permit him to come in here and excite his youthful imagination by reading such a book as the ‘Life of Washington!’ The reading of that one book may change the whole course of that boy’s life, and may be the means of making him a useful, honourable, worthy citizen of this great country. It is, I tell you, a sight that impresses a European not accustomed to your democratic ways.”
“Great Thoughts from Master Minds, Vol. VIII,” A. W. Hall, 132, Fleet Street (London, 1887). It appears that we, too, have now forgotten about democratic ways. The Fairfield County District Library shoe rule was first enacted in 1997. It was only then that the Board decided that bare feet must be banned. Barefooted patrons were not harassed before then.
It may not even be possible to get any court to look beyond these everyday assumptions and to actually look at the evidence. We have seen how even the Sixth Circuit Court of Appeals assumed facts not in evidence when they granted summary judgment against Neinast. We have seen how the Fairfield County Court of Common Pleas in the instant case bent the standard regarding mutuality of parties, and ignored the fact that the facts and issues in this case are different.
If the public health and safety really required that people wear shoes, wouldn’t that be within the providence of the Health Department, not a Library Board? Isn’t the purpose of a Library Board to provide library services to the public, not make judgments on whether something ought to be part of the latest fashion or not? Yet, such considerations are routinely ignored.
This is a hard case, and the trial court failed this test.
For these reasons, the trial court should be ordered to strike the Library’s Motion for Summary Judgment, the trial court’s grant of the Library’s Motion for Summary Judgment should be reversed, and Neinast’s Motion for Summary Judgment should be granted.
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Notice was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street — Suite 400, Lancaster, OH, 43130, this 19th day of April, 2010.
Robert A. Neinast
1. R.C. §121.22(H): “A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” [Back]
2. This is an obvious typo on the part of the Court. It refers specifically to the Customer Code of Conduct adopted by the CML Board of Trustees and containing the officially adopted shoe rule. [Back]
3. Note that the General Assembly superseded this ruling by enacting new division (C) of section 2721.02, new division (B) of section 2721.12, and division (C) of new section 3929.06 of the Revised Code. These changes affect only such tort actions. See also Cincinnati Insurance Co. v. Nickles Bakery (Dist. 2, 2003), 2003-Ohio-47, which the Court of Appeals distinguished from the new statutory changes and did not relax mutuality. [Back]
4. Actually, considering the noise that high heels make on tile, and the noise of flip-flops flipping and flopping, it might make more sense to ban those in libraries as unreasonably intrustive noises. [Back]
5. State v. Stouffer (10th Dist. 1971), 28 Ohio App. 2d 229, 276 N.E.2d 651, found that the risk of death and severe injuries had sufficient impact on society as a whole to justify the helmet requirement. No such fears have been expressed by anybody regarding bare feet. [Back]