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
APPLICATION FOR RECONSIDERATION
Pursuant to App. R. 26(A)(1), Appellant requests that this court reconsider portions of its opinion of November 15, 2010 in the above captioned case.
The standard of review for an application for reconsideration is whether the motion “calls to the attention of the Court an obvious error in its decision or raises an issue for our consideration that was either not considered at all, or was fully not considered by us, when it should have been.” Matthews v. Matthews (10th Dist. 1982), 5 Ohio App.3d 140, 143, 450 N.E.2d 278. See also State v. Dille (5th Dist. 2007), 2007-Ohio-4399, ¶2. In addition, the Ohio Supreme Court has stated that, in order to comply with App. R. 12(A)(1), Courts of Appeals must “comply with the rule [App. R. 12(A)] and state reasons for its decision so that the parties would not have to speculate on the legal and other obstacles to be overcome on appeal to this court.” Criss v. Springfield Twp. (1999), 43 Ohio St.3d 83, 84, 538 N.E.2d 406. This rationale would seem to apply equally when a case is remanded to the trial court—the trial court should not have to speculate on the meaning of the opinion in the instant case.
This Court's opinion in this case, in a number of instances, refers to the decisions in the previous Neinast lawsuits ( Neinast v. Board of Trustees of the Columbus Metropolitan Library (2003), 346 F.3d 585; Neinast v. Board of Trustees of the Columbus Metropolitan Library (10th Dist. 2006), 165 Ohio App.3d 211, 2006-Ohio-287) as “precedent” (¶34) or “settled case law” (¶¶55, 56, and 69). To the extent that the opinion in the instant case relies on those statements, that is obvious error. Neither the opinion of a sister Ohio Court of Appeals nor the opinion of a Federal Court of Appeals is binding on this Court. They might be considered persuasive, but they are not binding.
Regarding sister Courts of Appeals, the Ohio Constitution specifically recognizes that decisions of one Court of Appeals are not binding on the others. That is why Section 3, Article 4, paragraph (B)(4) provides for dealing with such a conflict. That is why App. R. 25 deals with how to certify such a conflict to the Ohio Supreme Court. See also Stapleton v. Holstein (4th Dist. 1998), 131 Ohio App.3d 596, 598 (“While it is not improper for a trial court to rely on an appellate decision from another district as persuasive authority, such a decision, whether reported or not, is not controlling authority.”); State v. Dovangpraseuth (10th Dist. 2006), 2006-Ohio-1533, ¶36; Lager v. Gonzalez (6th Dist. 2007), 2007-Ohio-4094, ¶30. Clearly, and rather ironically, those decisions regarding controlling authority, being from other Districts, are not binding on this court. If, as the opinion in the instant case appears to say, this Court disagrees, Appellant hereby moves this court to Certify a Conflict to the Ohio Supreme Court. The issue proposed for certification is: “Whether the decisions of a Court of Appeals in one District are binding upon the Courts of Appeals in the other Districts.”
Regarding Federal Court decisions, they are also not binding upon this Court. In State v. Burnett (2001) 93 Ohio St.3d 419, 423-424, the Ohio Supreme Court decided that they “are not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court,” but that they would “accord those decisions some persuasive weight.” A number of Courts of Appeals have also decided that lower federal court decisions are not binding on them, and none have decided the contrary. 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. Clearly, those decisions regarding lower federal courts, being from other Districts, are not binding on this court. If, as the opinion in the instant case appears to say, this court disagrees, Appellant hereby moves this court to Certify a Conflict to the Ohio Supreme Court. The issue proposed for certification is: “Whether the decisions of a lower federal court are binding upon the Courts of Appeals of Ohio.”
The opinion, in Paragraph 56, correctly decides that collateral estoppel does not apply, but due to the reasons above, it makes the obvious error that, “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.” These issues are not resolved by case law, since the case law is not controlling precedent; at most the case law can be considered persuasive, but the opinion in the instant case does not appear to address that.
Regarding the authority of the Library to establish rules, despite the incorrect statement that it is already established under applicable case law, this Court did go on to say that, “Based upon [the] reasoning [of the Tenth District Court of Appeals], we concur that public libraries have the authority to promulgate rules and regulations as to public health and safety.” However, this issue was not really fully considered by this Court, since there is no analysis or stated reason for the concurrance, leaving everybody to speculate as to whether this Court concurs with what it thought was binding precedent, or if it was independently persuaded. And, if this Court was independently persuaded, everybody is left to speculate as to just what this Court found persuasive.
The Tenth District opinion, quoted in the instant opinion, notes that Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 259- 260, 18 O.O.3d 450, 416 N.E.2d 614, requires “an intelligible principle to which the administrative body or officer must conform.” The Ohio Supreme Court put this another way in Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, saying “[a]dministrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly,” and “a regulatory authority must still rest upon a discernible public policy declaration by the General Assembly.” (Emphasis added.) Also see Appellant’s Brief, pp. 18-22.
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. Certainly, the word “proper” is not a public policy declaration, for it provides little if no guidance and does not define any sort of public policy. Similarly, O.R.C. 3375.06, which grants libraries authority to control and manage their libraries, contains no 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, and are not the required provision granting substantive regulatory authority.
Examples of actual discernible public policy declarations 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.
“All carcasses, parts thereof, and meat products inspected at any establishment under the authority of this chapter and found to be not adulterated, at the time they leave the establishment, shall bear, in distinctly legible forms directly thereon or on their containers, appropriate labeling as the director may require in accordance with rules adopted under this chapter.” O.R.C. 918.02(F).
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. A few more words about the police power: Even townships, in general, do not have the police power. Whatever police power townships have is strictly limited to that expressly delegated to them by statute (i.e., discernible public policy declarations!). Bd. of Bainbridge Twp. Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, 108. A township clearly does not have the power to enact a footwear rule for its territory. So where would a library acquire the authority to create a health and safety police power regulation without the slightest mention of the police power in the library statutes? Where does a library acquire the authority to act like a Health Department? 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.
It is hard to see how this Court could be considered to have completely addressed the issue of the authority of a library to make a footwear rule without having stated just what the discernible public policy declaration is. Further, finding that declaration in vague and broad words like “proper” and “control” is clearly an unconstitutional usurpation of the legislative power (“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). Appellant respectfully requests that this Court, as part of its reconsideration, actually specify what that discernible public policy statement from the legislature is. And if it cannot do so, this Court should recognize that libraries do not have the statutory authority to make a foowear rule, and the opinion should be revised accordingly.
Regarding the issue of personal liberty regarding footwear choice, this is the issue for which the Federal case, in error, was considered binding and controlling case law. (The Tenth District did not address this issue since collateral estoppel really did apply for that case.) The Ohio Supreme Court has dictated a different standard for personal liberty under the Ohio Constitution than rational basis review, instead saying that regulations “must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.” Cincinnati v. Correll (1943), 141 Ohio St. 535, syllabus at 1. However, it is also true that the Ohio Supreme Court have likened that standard to the federal rational basis standard. Nonetheless, even rational basis review requires that a regulation be rationally related to a legitimate governmental interest. As Appellant’s brief, pp. 22-26, showed, protecting a person against himself is not a legitimate governmental interest. This Court is requested to reconsider that issue without the preconception that the Federal case was binding upon it.
For these reasons, Appellant requests that this Court reconsider its opinion in the instant case, correct the obvious error, and fully consider the issues of the authority of the library and personal liberty.
Robert A. Neinast
Plaintiff-Appellant, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
CERTIFICATE OF SERVICE
At oral argument, we were informed that Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendant, had retired. As of this moment, no new attorney has filed an appearance in this case. Therefore, I hereby certify that a copy of the foregoing was served, by hand delivery along with verbal instructions to deliver it to the Assistant Prosecuting Attorney now responsible for this case, upon the Fairfield County Prosecutor’s office, 201 South Broad Street – Suite 400, Lancaster, OH, 43130, this 24th day of November, 2010.
Robert A. Neinast