COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH

ROBERT A. NEINAST Plaintiff, v. BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY, Defendants.

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Case No. 09 CV 0657 Judge Martin

PLAINTIFF'S MOTION FOR ORDER TO COMPEL DISCOVERY

Pursuant to Civ. R. 37(A), Plaintiff Robert A. Neinast moves the court for an order compelling Defendant, the Board of Trustees of the Fairfield County District Library, to answer the following Interrogatories submitted to it to which an objection was asserted in lieu of an answer, on the grounds that the Interrogatories are proper and not subject to objection: No. 13, No. 15, No. 16, No. 17, No. 18.

If this Court declines to compel the Defendant to answer those interrogatories, Plaintiff instead requests that the Court order Defendant to comply with Civ. R. 33(A)(3), that is, to have the objections signed by the attorney making them.

A memorandum in support is attached.

Respectfully submitted, _______________________ Robert A. Neinast, Plaintiff 8617 Ashford Lane Pickerington, OH 43147 Phone: (614) 759-1601 Email: neinast@att.net

MEMORANDUM IN SUPPORT

Civil Rule 37(E) Statement

Plaintiff served Interrogatories upon Defendant’s attorney, Roy E. Hart, on June 23, 2009. Defendant failed to respond to them within the 28 days required by Civ. R. 33(A)(3). During the Initial Telephone Conference on July 27, 2009, with Magistrate Judge Susan Eyerman, she ordered that the Interrogatories be answered by August 10, 2009. Those answers arrived on August 7.

However, those answers were deficient in that there were objections to five of the Interrogatories and those objections were not signed by the attorney making them, as required by Civ. R. 33(A)(3).

Mr. Neinast sent Mr. Hart an email regarding the lack of signature on August 10. Neinast also noted that all of the Interrogatories objected to asked for opinions or contentions, and that Civ. R. 33(B) states:

An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion, contention, or legal conclusion, but the court may order that such an interrogatory be answered at a later time, or after designated discovery has been completed, or at a pretrial conference.

After receiving no reply to the email, Neinast then phoned Mr. Hart on August 18. Regarding the objections, Mr. Hart re-iterated his position that they asked for speculation, not opinions or contentions, and that we would have to agree to disagree. In that phone call, Mr. Hart was also notified that he had not complied with Civ. R. 33(A)(3). As of this date he has not yet done so.

Standards Relating to the Discovery of Admissible Evidence

One of the cruxes of this lawsuit is the statutory interpretation of O.R.C. 3375.40(H), and whether the authority granted there by the General Assembly to the Library to make “rules and regulations for the proper operation and management of the free public library” includes the authority to make a rule limiting the access to the Library of patrons who are not wearing shoes. Plaintiff contends that such a rule is not part of the proper operation and management of a library, and that the Library is exceeding its legislative grant of authority. Furthermore, Plaintiff also contends that the shoe rule is arbitrary and capricious. The Interrogatories objected to all try to discern just what sort of rules the Board considers to be “proper” for a library to make and to determine the evidence supporting supporting the Library’s conclusions in that regard.

With some exceptions, all relevant evidence is admissible (Evid. R. 402), and relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (Evid. R. 401). In addition, an “interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion, contention, or legal conclusion, . . .” (Civ. R. 33(B)). The Interrogatories objected to all specifically ask for an opinion or contention.

Interrogatory No. 13 is Proper and the Defendant Should be Compelled to Answer It

Interrogatory No. 13 asks

Do you contend that bare feet on a patron are in any way disruptive of the Library environment, or represent a danger to any other patrons? If so, in what way? And if so, how are flip-flops not equally disruptive or dangerous?

The response to this Interrogatory was “Object as interrogatory calls for speculation.” This question bores right into the heart of whether the shoe rule is proper. Libraries are created by the State and supported by the State expressly to allow the citizenship access to their materials. Any restriction on that access, to be proper, should be for the purposes of providing that the library actually be used as a library, protecting library materials, and ensuring that library patrons can access that material. The library claims that the shoe rule was maintained, among other reasons, to provide decorum in the library and because they are allowed to create a dress code. If the library is banning bare feet for decorum reasons, yet it has nothing more than speculation that the sight of a bare foot is disruptive to the library environment, then how can expelling well-behaved patrons for that be proper? Furthermore, flip-flops expose just as much of the foot to public view as a bare foot. Again, what is the basis for its claim that a shoe rule is a proper rule for maintaining decorum?

For these reasons, Interrogatory No. 13 is proper and the Library should be compelled to answer this Interrogatory to help establish evidence for the basis for its shoe rule.

Interrogatories Nos. 15, 16, 17, and 18 are Proper and the Defendant Should be Compelled to Answer Them

Interrogatories Nos. 15, 16, 17, and 18 read as follows:

No. 15: Is it possible that a patron, in reaching up for a book or books on a higher shelf, could have a book drop down upon his or her head, or onto his or her foot? If so, is it your contention that proper operation and management of the Library would include making a rule that all patrons wear hard hats or steel-toed shoes? And if so, in what way?

No. 16: Is it possible for a patron wearing high-heeled shoes to catch one of those heels in the carpeting, to twist his or her ankle due to the height of the heel and/or some minor defect in the floor of the Library, or to otherwise injure him- or herselves while in the Library? If so, is it your contention that proper operation and management of the Library would include making a rule that banned high heels? And if so, in what way?

No. 17: It is possible that a patron might be infected with the H1N1 influenza virus which could then be spread to other Library patrons? It is your contention that proper operation and management of the Library would include requiring that every patron, before entering the Library, provide proof of vaccination against that virus? If so, in what way?

No. 18: Is it your contention that the conditions in the Library regarding barefoot use are different than the conditions in the Fairfield County Hall of Justice and the Ohio Statehouse? If so, please detail the differences that justify a shoe rule as part of the proper operation and management of the Library.

The responses to all questions was, “Object as interrogatory calls for speculation.”

These questions all reach directly to the issue of whether there is evidence that a shoe rule is a more or less probable part of the proper operation and management of a library, since examining other situations probes the scope of “proper operation and management” and whether the legislative grant of authority is intended to cover that scope.

All rules must be based upon a grant of legislative authority, since only the General Assembly can legislate: “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, 653 N.E.2d 349, 354. Furthermore, “a statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively.” Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 260, 416 N.E.2d 614, 618. In short, the Library Board, in its rulemaking, is required to follow a policy set out by the legislature, and that policy must have intelligible principles to determine whether its rules are within the scope of its authority. The Ohio Revised Code Chapter 3375 appears to contains no such policy or intelligible principle supporting restricting patrons based upon “decorum.” It furthermore appears to contain no such policy or intelligible principle supporting restricting patrons based upon irrational liability concerns.

Forcing the Library to answer these Interrogatories gets at its basis for believing that its shoe rule based on decorum and liability issues is proper. For instance, if the scope of the legislative grant includes the authority of the Library to limit its liability by requiring steel-toed shoes (Interrogatory No. 15), limit its liability by banning high-heels (Interrogatory No. 16), or make health and safety regulations by requiring vaccinations (Interrogagory No. 17) then it is more probable that the scope of that grant also includes the authority to ban bare feet. On the contrary, if these are not within the legislative grant, then it is less probable that bare feet may be banned. The opinion, contention, or legal conclusion of the Library on this issue directly leads to evidence as to whether its shoe rule is supported by a legislative policy statement with an intelligible principle. If the Library is using such an intelligible principle to determine whether its rules are proper, then they should be able to apply that intelligible principle to these examples.

Additionally, whether a ban on bare feet in the Library is part of the proper operation and management of a library is made more or less probable by examining the conditions and rules at other venues. For instance, if other public buildings do not ban bare feet, but the Library does, it is less probable that its shoe rule is part of the proper operation and management of a library, unless there is some special condition in public libraries that does not occur in those other buildings (Interrogatory No. 18). Since neither the Hall of Justice nor the Ohio Statehouse ban bare feet, this question gets right at the heart as to whether there is evidence supporting a special condition in the Library that would justify a rule requiring shoes to use its facilities.

While these Interrogatories all ask for an opinion or contention, the Library says that answering them would require “speculation.” If that is the case, then its shoe rule requires the exact same kind of speculation, and therefore cannot be supported by an intelligible principle.

For these reasons, Interrogatories Nos. 13, 15, 16, 17, and 18 are all proper, are reasonably calculated to lead to the discovery of admissible evidence, and the Library should be compelled to answer them.

Conclusion

Certainly, unless and until the Library’s attorney properly signs the objections as required by Civ. R. 33(A)(3), they should be considered answered in Plaintiff’s favor.

Additionally, for all these reasons, Plaintiff prays that this court issue an order compelling that the Defendants answer the enumerated Interrogatories.

Respectfully submitted, _______________________ Robert A. Neinast, Plaintiff 8617 Ashford Lane Pickerington, OH 43147 Phone: (614) 759-1601 Email: neinast@att.net

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion and Memorandum in Support were 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 11th day of September, 2004.

_______________________ Robert A. Neinast Plaintiff