IN THE SUPREME COURT OF OHIO
Robert A. Neinast
Appellant,v.Board of Trustees of the Fairfield
County District Library,
On Appeal from the Fairfield County
Court of Appeals, Fifth Appellate
Court of Appeals No. 2010-CA-011
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT ROBERT A. NEINAST
Robert A. Neinast, pro se
8617 Ashford Lane
Pickerington, OH 43147
APPELLANT, PRO SE
Jason M. Dolin (0041820)
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 West Main Street, Ste. 101
Lancaster, Ohio 43130
ATTORNEY FOR APPELLEE
TABLE OF CONTENTS
Page EXPLANATION OF WHY THIS CASE INVOLVES A
SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS
A CASE OF PUBLIC OR GREAT GENERAL INTEREST
STATEMENT OF THE CASE AND FACTS
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1: The legislative power is
unconstitutionally usurped when a creature of statute promulgates
specific police power health and safety regulations when
its enabling statutes contain no intelligible principle or
discernible public policy statement supporting such regulations
Proposition of Law No. 2: When acting upon a motion for summary
judgment, if there are no issues of material fact because the
non-moving party has failed to meet its burden of production, summary
judgment must be granted the moving party when the law allows it
Proposition of Law No. 3: Decisions of Federal Courts below the U. S.
Supreme Court are not binding upon the Courts of Appeal of Ohio,
and decisions of sister Courts of Appeal are not settled case law
with respect to other Courts of Appeal
PROOF OF SERVICE
Appendix Page APPENDIX
Opinion of the Fairfield County Court of Appeals
(November 15, 2010)
Judgment Entry of the Fairfield County Court of Appeals
(November 15, 2010)
Judgment Entry of the Fairfield County Court of Appeals (Denial of
Application for Reconsideration (January 31, 2011)
EXPLANATION OF WHY THIS CASE INVOLVES A
SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS
A CASE OF PUBLIC OR GREAT GENERAL INTEREST
This cause presents the substantial constitutional issue of whether a library, and hence other similar governmental entities, may make police power health and safety regulations without explicit authorization from the legislature. In other words, the issue is whether such rule-making is an unconstitutional usurpation of the legislative power. It also presents the constitutional issue as to whether a Court of Appeals can ignore its duty under the Ohio Constitution to certify a conflict when such a conflict exists. Additionally, this cause presents the issue of great general interest as to whether the standards for granting Summary Judgment will be applied evenly and as required by law. Finally, this cause also presents the issue of great general interest as to whether decisions in the Federal court system or in other Courts of Appeals are "settled case law" for the law and facts of this case, particularly when those other court decisions do not even address the most important arguments of this case.
In this case, the Court of Appeals correctly decided that collateral estoppel did not apply from earlier cases,1 since the parties were not the same, were not in privity with each other, and none of the recognized exceptions to the principle of privity applied. However, the Court of Appeals denied Neinast's Motion for Summary Judgment despite the library in this case, the Fairfield County District Library ("Library"), not offering any supporting material facts in response to that motion. In addition, the Court of Appeals presented the other cases as "precedent" and "settled case law," and then remanded the case back to the trial court for additional fact-finding.
This case is yet another attempt to get the appeals courts to recognize that the language of R.C. 3375.40(H), which says that the board of trustees of a library may "make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, . . .", does not include a grant to make police power regulations for the library, for this statutory language does not provide any sort intelligible principle or discernible public policy declaration by which such a delegation of authority could be established. The specific rule in question is a rule banning bare feet in the Library. The only reason presented by the Library for upholding its shoe rule during its initial Board Meeting was "decorum." However, in response to further inquiries by Neinast and in response to this lawsuit, that rationale shifted to "it is the fiscal responsibility of the Board to reduce and eliminate any risks which may potentially produce costly liability." In response to Neinast's Motion for Summary Judgment, the Library presented nothing demonstrating any risk of costly liability from allowing bare feet.
This Court has made quite clear that it is the General Assembly that has been granted the legislative function by the Ohio Constitution, not unelected administrative Boards. Allowing such rulemaking, even if it appears to apply to something considered trivial, makes a mockery of the constitutional principles this State is dedicated to.
The issue of the undelegated assumption of power to regulate the choice of footwear (or lack thereof) is not going to go away. There is a growing movement of people who are realizing that shoes can damage the feet and that bare feet are an acceptable alternative. Many of our forebears entered this state barefoot, tilled the soil barefoot, and even until quite recently went to school barefoot. We need only look at the example of Johnny Appleseed to realize that.2 These people are reclaiming their rightful heritage to make such choices for themselves, and not to have the state dictate such personal choices based on ignorance and fear. There is a "barefoot" movement afoot.3 In addition, barefoot running is really taking off,4 as folks discover the benefits and yes, the joy, of doing so. Yet, the Library is claiming that governmental bodies have the authority to regulate such a personal choice as part of the police power. If it truly is the case that doing any activity barefooted may be regulated by the state to protect people from themselves, then bike-riding, kite-flying, canoeing, frisbee catching, and wearing insufficient sun-screen could be banned on the whim of any governmental entity, for they too involve some small risk to the person involved. This is a tremendous expansion in the power of government and means that freedom in this state is totally dependent on the charity of governmental authorities.
Again, this is not going away. There have already been other cases in this state in which businesses have ignorantly had barefooted customers arrested for false reasons (claiming the existence of phantom Health Department rules). See, Koss v. The Kroger Co. (Dist. 10, 2004), 2004-Ohio-3595. Regarding the usurpation of the legislative function by libraries, if this Court does not accept jurisdiction for this case, then there are still ten other appeals districts in which libraries can be challenged to see if there is some Court that will look at this issue with an unjaundiced eye.
What is disappointing, however, is to watch the Courts of Ohio throw away the well-established law of this state in order to find an excuse, any excuse, to uphold a footwear rule that has no basis in law.
This case has important public interest implications in that it involves the assumption by an administrative body of the police power. The police power is something special; it is not about the mere functioning of some administrative body. Even Ohio's Constitution is careful to distinguish when the police power is granted and when it is not: it is granted in addition to the power of self-government, as with the state legislature and with municipalities. For example, when it came to townships, the legislature explicitly delegated limited police powers (in addition to limited self-government). R.C. Chapter 504. Yet these Courts of Appeals have acquiesced in library cases to the assumption of the police power by an administrative body without any sort of explicit (or even implicit) grant. Furthermore, when the legislature does grant portions of the police power to administrative agencies, it most explicitly does so in the area of expertise of that administrative agency. In this case, the Library has assumed the police power in the area of footwear safety, an area with no relation to its area of expertise. It is most important for this Court to make clear that administrative bodies cannot assume the police power without clear authorization.
When the Fifth District Court of Appeals partially remanded this case to the trial court, it claimed that decisions in other Federal courts were "precedent" and that a decision in the Tenth District Court of Appeals was "settled case law" in regards to a case in a totally separate appeals district. Furthermore, the Fifth District Court of Appeals remanded the case back to the trial court to determine if in fact [the Library] can establish reasons for the footwear rule that applies specifically to [the Library].
The Library already had its chance to establish reasons for its footwear rule in response to Neinast's Motion for Summary Judgment. The Library said that the reason was "fiscal responsibility" and presented no material facts in support of that proposition. Instead of following the rules for Summary Judgment, the trial court gave the Library yet another bite of the apple to come up with a reason and the facts to support its shoe rule.
In sum, it is important for this Court to clarify that rulemaking without a discernible public policy declaration is ultra vires. It is important for this Court to uphold the integrity of the summary judgment process. It is important for this Court to make clear that "settled case law" resides within each Appellate District and ultimately with the Ohio Supreme Court. This Court should grant jurisdiction.
STATEMENT OF THE CASE AND FACTS
This case arose because appellant Robert A. Neinast has made the personal choice to go barefoot just about everywhere, including a host of public buildings including libraries. He already lost a lawsuit against the Columbus Metropolitan Library, noted above, when the Tenth District Court of Appeals stated that the phrase "proper operation and management" provided the intelligible principle or discernible public policy statement allowing such rulemaking. As a result, Mr. Neinast has had to look elsewhere for the sorts of public library services that libraries are supposed to provide under O.R.C. Chapter 3375. The Fairfield County District Library is the library that he attempted to use to subsequently obtain those services.
Unfortunately for Mr. Neinast, the Fairfield County District Library also had a shoe rule.5 After being ejected, Mr. Neinast exchanged some letters and emails with the Library Director (in which the Director stated, after discussions among Board members, that the reason for the footwear rule was "decorum"), and eventually made a presentation to the Library Board of Trustees. In that presentation Mr. Neinast showed how decorum had nothing to do with bare feet and he gave historical information about bare feet in Ohio. Mr. Neinast also presented various scientific papers and his own experience relating how fears of injury from going barefoot were unjustified and that footwear has its own set of equivalent dangers. Nonetheless, in the end the Library upheld its footwear policy.
Mr. Neinast sued the Library in the Fairfield County Court of Common Pleas, claiming that the footwear rule was an unconstitutional usurpation of the legislative function and that it violated his personal freedom. The Library responded by asserting that Neinast's claims were barred by collateral estoppel. In addition, Neinast filed a Motion for Summary Judgment, which the Library responded to by claiming "fiscal responsibility" but without providing any facts to support that. Meanwhile, from discovery, Neinast met his burden by showing that the Library said it knew of no hazards, that the Library's insurance policy had no exclusion for barefooted injuries, that Neinast's barefoot presence in the Library was neither disruptive nor presented any danger to other patrons, and that the Library allowed children to sit and play on the floors it deemed too unsafe for bare feet. The Library never met its reciprocal burden to set forth specific facts demonstrating that there was a genuine issue of material fact for trial.
The Trial Court granted the Library's Motion for Summary Judgment on the grounds of collateral estoppel.
The Fifth District Court of Appeals reversed and partially remanded. However, it did not grant Neinast's Motion for Summary Judgment, saying that the Library did have the authority to create the barefoot rule. In doing so, it said
Although the authority to create the rule is clearly established by case law as to its impact to personal liberties, the matter subject to hearing and fair debate and a day in court is this library's basis for the rule. (Emphasis added; Opinion, ¶55).
That Court also said
All other issues, including the authority to establish rules and the Federal Courts' holdings that a properly formulated footwear rule does not violate personal freedoms, are resolved under applicable case law. (Emphasis added; Opinion, ¶56).
Finally, in its conclusion, that Court said
Upon review, we conclude the issue of the authority to promulgate rules is settled based upon case law, and summary judgment for appellant apart from the collateral estoppel issue would not have been appropriate. (Emphasis added; Opinion, ¶69).
The case law cited to above refers to Neinast's previous cases, in Federal Court and the Tenth District Court of Appeals.
On November 24, 2010, Neinast filed an Application for Reconsideration with the Fifth District Court of Appeals, noting that the decision of the Federal Court was not binding on the present Court, nor was the decision of the Tenth District Court of Appeals. Mr. Neinast also included, in the event that the Court of Appeals decided that those decisions really were binding, motions to certify the issues, since numerous Courts of Appeals in Ohio have decided otherwise.
On January 31, 2011, the Court of Appeals denied the Application for Reconsideration and ignored the motions to certify the issues.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1: The legislative power is unconstitutionally usurped when a creature of statute promulgates specific police power health and safety regulations when its enabling statutes contain no intelligible principle or discernible public policy statement supporting such regulations.
The Court of Appeals committed clear error when it said that it concurred6 with the decision of the Franklin County Court of Appeals that the phrase "proper operation and management" provided the Fairfield County District Library with the legislative delegation of authority to create a police power health and safety footwear requirement. "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), 1995-Ohio-337, 73 Ohio St.3d 530, 535. "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." Ratchford, 64 Ohio St.2d 256, syllabus. Even when "such standards are 'impossible or impractical to provide,' . . ., 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. Furthermore, when a grant of power is made, both the intention of the grant and its extent must be made clear. Additionally, if there is any doubt as to the grant, "that doubt is to be resolved not in favor of the grant but against it." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172 at ¶40.
R.C. 3375.40(H) is the statute that defines the rulemaking authority of library boards. It says, in its entirety, that a board may
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;
It seems incredible that the lower courts found an "intelligible principle" or a "discernible public policy declaration" regarding police power safety regulations in that statutory text. An "intelligible principle," by definition, must provide an easily understood method by which one could decide whether a potential rule is permitted or not. The mere word "proper" cannot do so; that word is unable to provide the necessary specificity required to avoid the unconstitutional usurpation of the legislative power. Nor can the language of R.C. 3375.40(H) provide a "discernible public policy declaration" by any reasonable definition of the phrase, unless that declaration is that the delegation is limitless—and thereby an unconstitutional delegation of authority on its face.
If there is a discernible public policy declaration, what is it? Surely, if such a declaration exists, a Court ought to be able to quote it, yet no Court has done so. Nor does O.R.C. 3375.06, which grants libraries authority to control and manage their libraries, contain a public policy declaration. As explained in D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172, syllabus ¶3, such statements enable rule-making, but are not the required provision granting substantive regulatory authority.
Examples of actual discernible public policy declarations in the Ohio Revised Code include:
- ". . . 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).
- "Such rules shall be designed to . . . [e]nsure every resident of Ohio access to essential public library services." O.R.C. 3375.82(A).
- "The board may also provide for the medical and dental supervision of school children, for the free treatment of cases of venereal diseases, for the inspection of schools, public institutions, jails, workhouses, children's homes, infirmaries, and county homes, and other charitable, benevolent, and correctional institutions." O.R.C. 3907.22.
If such a constitutionally required discernible public policy declaration from the legislature exists for a library footwear policy, none of the Courts who have considered the issue have deigned to state it. What might such a public policy declaration look like?
- A library board may exclude patrons if they do not conform to the library's standards of appropriate attire, even if that attire disturbs nobody else.
- A library board has the powers of a Health Department within the library.
- A library board has police powers to ensure the health and safety of its patrons.
None of these statements exist. Where does a library acquire the authority to act like a Health Department? If a library board has the power to ban bare feet, does it also have the power to ban high heels?7 If a library board enacts a rule that all patrons must show proof of vaccinations, does that also fall under the general statement that boards may control their libraries? Again, though, there is no such discernible public policy declaration that any health and safety regulation is within the power of libraries.
Furthermore, in his talk before the Board, and in his filings, Neinast showed that walking with bare feet is perfectly safe, or at least as safe as other footwear. Despite this, the Library still insists it ought to be able to ban them. Catering to paranoia is not a legitimate governmental interest.
Proposition of Law No. 2: When acting upon a motion for summary judgment, if there are no issues of material fact because the non-moving party has failed to meet its burden of production, summary judgment must be granted the moving party when the law allows it.
The standards for summary judgment are quite clear. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
Neinast, the party moving for summary judgment, informed the trial court of the basis for his motion and identified those parts of the record that demonstrated the absence of a genuine issue of material fact (e.g., the insurance policy, the library's statement of no hazards, children sitting on the floor). That shifted the burden to the Library. It responded with no specific facts, and, in fact, it responded with nothing. Instead of remanding to the trial court to "determine if in fact [the Library] can establish reasons for the footwear rule that applies specifically to [the Library]," the Court of Appeals was required to grant Neinast's Motion for Summary Judgment, and should not have given the Library yet another bite of the apple to come up with some specific fact suitable for trial.
Proposition of Law No. 3: Decisions of Federal Courts below the U. S. Supreme Court are not binding upon the Courts of Appeal of Ohio, and decisions of sister Courts of Appeal are not settled case law with respect to other Courts of Appeal.
This Court has ruled that it is not bound by the decisions of Federal Courts below the U. S. Supreme Court. See State v. Burnett (2001) 93 Ohio St.3d 419. It has never said whether this state's Courts of Appeal are similarly unbound. Many of the Courts of Appeal, however, have decided that they, too, are not bound by such Federal Court decisions.8 The Fifth District Court of Appeals, however, stated that the Federal decision in Neinast v. Board of Trustees of the Columbus Metropolitan Library (2003), 346 F.3d 585, was settled case law. It is not.
Additionally, the Fifth District Court of Appeals also applied the appellation of settled case law to the decision of the Tenth District Court of Appeals. Here, the Ohio Constitution (Section 3, Article 4, paragraph (B)(4)) specifically recognizes that decisions of one Court of Appeals are not binding on the others. That is why App. R. 25 deals with how to certify such a conflict to the Ohio Supreme Court.
Finally, there is another reason why it was wrong for the Court of Appeals to agree with those previous opinions in the first place. The only reason the Library gave for its footwear rule was "fiscal responsibility" to reduce "costly liability", yet the Library is statutorily immune from liability regarding injuries on its property except for those caused by "physical defects within or on the grounds of" the library. See O.R.C. Chapter 2744 and Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946. Furthermore, patrons of libraries are licensees, not invitees. See Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315, and the application of that decision to a library in Souther v. Preble County District Library (Ohio App. Dist.12, 2006), 2006-Ohio-1893. Since Library patrons are licensees, the only duty of the Library is "to refrain from wanton, reckless, or willful conduct" which is likely to injure the licensee. Where would this "costly liability" come from?
A careful examination of the previous Neinast cases shows that neither the Federal Court nor the Tenth District Court of Appeals even mention statutory immunity or library patrons as licensees. How could the Fifth District Court of Appeals possibly "concur" in such opinions when those two issues eviscerate any claim of fiscal responsibility or costly liability?
For the reasons discussed above, this case involves a substantial constitutional question and issues of important public and general interest. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. As an alternative and due to the obvious errors, the appellant also suggests that a summary reversal might be appropriate.
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 was served, by regular U.S. mail, upon Mr. Jason M. Dolin, Assistant Prosecuting Attorney, Attorney for Defendants, 239 West Main Street — Suite 101, Lancaster, OH, 43130, this 17th day of March, 2011.
1. Neinast v. Board of Trustees of the Columbus Metropolitan Library (2002), 190 F.Supp.2d 1040; Neinast v. Board of Trustees of the Columbus Metropolitan Library (2003), 346 F.3d 585; and Neinast v. Board of Trustees of the Columbus Metropolitan Library, 165 Ohio App.3d 211, 2006-Ohio-287. [Back]
2. See, for instance, Price, Robert, Johnny Appleseed, Man & Myth, (Urbana University, Urbana, OH, 1954, reprinted 2006) [Back]
3. See, e.g., “Get fit for free: Barefoot walking,” The Guardian, January 8, 2011, <http://www.guardian.co.uk/lifeandstyle/2011/jan/08/get-fit-free-barefoot-walking>; “The grass under your feet,” The Cavalier Daily, January 24, 2011, <http://www.cavalierdaily.com/2011/01/24/the-grass-under-your-feet/”>; “Barefoot in the snow — and lovin’ it,” The Edmonton Journal, January 1, 2011, <http://www.edmontonjournal.com/opinion/blogs/Barefoot+snow+lovin/4041994/story.html>; or simply Google “barefoot walking” for a host of other articles. [Back]
4. See, e.g., “Barefoot in the Park, but Mostly in the Streets,” The New York Times, February 8, 2009, p. SP10, <http://www.nytimes.com/2009/02/08/sports/othersports/08barefoot.html>; or Google “barefoot running.” [Back]
5. It should be noted that not all libraries in Ohio have shoe rules; they seem to be able to maintain their fiscal responsibility without ejecting patrons for specious reasons. For instance, the Pickerington Public Library has no shoe rule, and Mr. Neinast uses it regularly. However, as a small-town library, it does not provide the depth of resources that larger libraries such as the Columbus Metropolitan Library and the Fairfield County District Library do. [Back]
6. Frankly, the decision of the Fairfield County Court of Appeals is confusing. In one place it says it concurs with the reasoning of the Franklin County Court of Appeals (but does not say why or how). Yet, in other places (including the end summary) it says that its decision was based on settled case law. [Back]
7. Included in the material that Neinast supplied to the Board (and which are in the record) were numerous cases in which injuries related to the wearing of high heels resulted in lawsuits. [Back]
8. See, e.g., JJO Construction, Inc. v.. Penrod (8th Dist. 2010), 2010-Ohio-2601, ¶12; State v. Hill (11th Dist. 2008), 2008-Ohio-3509, 177 Ohio App.3d 171, 894 N.E.2d 108, ¶40, fn. 1; State v. Wamsley (7th Dist. 2006), 2006-Ohio-5303, ¶52; Nagel v. Horner (4th Dist. 2005), 2005-Ohio-3574, 162 Ohio App.3d 221, 833 N.E.2d 300, ¶7; State v. Prom (12th Dist. 2005), 2005-Ohio-2272, ¶22. [Back]