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. 2011-CA-26
Trial No. 09 CV 0657
REPLY BRIEF OF APPELLANT ROBERT A. NEINAST
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, Ohio 43147
TABLE OF CONTENTS
Introduction 1 Argument 1 1. The Library's "Statement of Facts" Prejudicially Exaggerates the Actual Testimony 1 2. The Scope of the Trial Court's Examination of the Shoe Rule is Unknown Since it did not Take Judicial Notice of the Limits on the Library's Liability 4 3. The Library Considers Civ.R. 65(C) a Nullity 5 4. The Evidence does not Support the Library's Promulgation of the Shoe Rule 7 Conclusion 11 Certificate of Service 11 Appendix (Code of Conduct) 12
TABLE OF AUTHORITIES
The C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279 7 Costoff v. Akron General Medical Center (9th Dist. 2004), 2004-Ohio-5166 6 D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health (Ohio 2002), 96 Ohio St.3d 250, 2002-Ohio-4172 10 DeWeese v. Palm Beach (11th Cir. 1987), 812 F.2d 1365 8 Dresher v. Burt (Ohio 1996), 75 Ohio St.3d 280, 1996-Ohio-107 6 Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389 9 In re Guardianship of Spangler (Ohio 2010), 126 Ohio St.3d 339 10 Mitchell v. International Flavors & Fragrances, Inc. (1st Dist. 2008), 902 N.E.2d 37, 179 Ohio App.3d 365, 2008-Ohio-3697 6 Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040 5 Neinast v. Bd. of Trustees of the Columbus Metro. Library (6th Cir.2003) 346 F. 3d 585 5 Nolan v. Nolan (1984), 11 Ohio St. 3d 1 10 State v. Wilson (Ohio 2007), 113 Ohio St.3d 382, 2007-Ohio-2202 8 Young v. Gorski (6th Dist. 2004), 2004-Ohio-1325 6
O.R.C. § 2923.1212(A)(9) 4 O.R.C. § 3791.031(B) 4 O.R.C. Chapter 3794 4
In its Brief of Appellant, the Library argues that the testimony in the evidentiary hearing establishes the authority of the Library to make its shoe rule. However, that testimony shows that any need for a shoe rule is weak, at best. That weakness, combined with the standards required for administrative rulemaking, put the shoe rule beyond the authority of the Library.
In addition, the Library continues to argue that liability concerns support its shoe rule; if the Trial Court had taken proper judicial notice of the limits on the Library's liability, that concern would no longer be of issue. Additionally, the language of this Court's remand did not specifically require an evidentiary hearing; by holding one, the Trial Court ignored the dictates of the standards regarding motions for summary judgment.
1. The Library's "Statement of Facts" Prejudicially Exaggerates the Actual Testimony
The Library made a number of exaggerations in its Statement of Facts. Below are some corrections.
The Library notes that "there was extensive testimony about the reasons why the Library enacted its rule." Brief of Appellee at 6. While this is true, what the Library neglects to mention is that this testimony fluttered in the prevailing breeze. As brought out in the testimony of the Library's Director, Ms. Marilyn Steiner, "decorum" was used as the reason when that was thought sufficient. Tr. 147:18 Tr. 146:22-148:22. The reasons then shifted to safety (Tr. 155:12-24) and fiscal responsibility (Tr. 168:12-172:10). The whole issue of MRSA never arose until the Library brought in Dr. Timothy Landers specifically to testify in this case. Actually, none of these address "the reasons why the Library enacted its rule." They are just post hoc defenses for doing so. The rule was enacted in 1997, and the only Library Trustee who testified about its enactment, Mr. Vandervoort, had no recollection why it was enacted in the first place, saying only, "[I]t probably was presented to us by the Library Director who has a number of sources of information, of things the library should be doing. And it was probably presented to us then and we agreed." Tr. 244:23-245:3. As Neinast documented in his Brief of Appellant (April 19, 2010) in his previous appeal on this case, "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.
In its quest to protect us from MRSA, the Library states, "MRSA exists on all kinds of surfaces and is commonly found on the floors of public libraries." Brief of Appellee at 7. This exaggerates by making it appear as if floors are a particularly hazardous source of MRSA. As presented in the testimony, it is ubiquitous. Tr. 31:1-33:14. It is "commonly" on all surfaces, so the exposure of any uncovered skin, whether on the foot or not, is subject to the dangers presented. As noted in the testimony, even library books present a danger of MRSA infection. Tr. 66:9-67:7. If a patron got a paper cut from one of the books or had a pre-existing wound, the same danger would be there.
The Library states that Dr. Landers "testified that a rule requiring individuals in a public facility to wear shoes would be a reasonable way to diminish or limit the spread of MRSA and other pathogens." Brief of Appellee at 7. What Dr. Landers said was that "it would be reasonable to assume that would be helpful," but that is a mere assumption, not fact. Tr. 53:1-2. (Emphasis added.) In addition, the question he was answering asked whether a shoe rule was a "reasonable and effective way to diminish or limit the spread of MRSA and other pathogens." Tr. 52:21-23. (Emphasis added.) Dr. Landers said nothing at that time about effectiveness. However, on cross-examination, he admitted that when it came to going barefoot in his bathroom or the beach, bare feet were acceptable because of "expectations" (Tr. 64:2), and that exposure of other skin, such as skin touching books, was also acceptable because of "expectations" (Tr. 67:7). Regarding effectiveness of the Library's shoe rule, Dr. Landers also admitted that a shoe rule only in the Library has a small epidemiological effect and would have to be part of "a public health strategy of public places" (Tr. 61:19-20). In other words, such a rule would not be effective at all.
Finally, the Library states that, "The shoe rule was part of a comprehensive Code of Conduct designed to create a safe and usable facility." Brief of Appellee at 9, repeated at 14. As Neinast noted in his original Brief of Appellant (April 19, 2010, p. 21) the first time this Court heard this case,
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.
However, the question asked of the Director was merely whether there were rules that affected safety. Tr. 269:21. She responded by noting the rule prohibiting "Loitering, running, shoving, fighting, spitting or throwing objects." Code of Conduct, Defendant's Exhibit 1. Tr. 270:2-3 (See Appendix). Of course, the main purpose of that rule is to prevent other library patrons from being disturbed in their use of the library. The only other items related to safety are the one prohibiting smoking (for which there is the public policy declaration provided by Chapter 3794 of the Ohio Revised Code)1 and the one related to weapons (for which there is a public policy declaration provided by O.R.C. § 2923.1212(A)(9)). Even the item related to shoes ("Shirt and shoes must be worn in any library facility") is not particularly related to safety since the wearing of a shirt has no safety implications.
2. The Scope of the Trial Court's Examination of the Shoe Rule is Unknown Since it did not Take Judicial Notice of the Limits on the Library's Liability
It is true, as the Library notes, that the Trial Court stated that it intended to apply the correct law. However, there is no way to tell from the Entry how or whether the issues of statutory immunity or library patrons as licensees were actually applied by the Trial Court. The Trial Court, without mentioning fiscal responsibility one way or the other, merely concluded that the shoe rule was "related to public health and public safety." The Trial Court was supposed to do an examination of the shoe rule. Much of the testimony regarded the Library's intent to "avoid potentially costly liability" (Brief of Appellee at 9, 14), yet if the fact that it had no such exposure is included in the word "related", then the Trial Court is in error. Is the supposed impact of costly potential liability lawsuits part of what justifies the shoe rule according to the Trial Court? We have no idea and no way of finding out.
It should be noted that the Courts in the previous barefoot lawsuits were briefed on these issues of statutory immunity and library patrons as licensees. Yet it did not stop those courts from stating that the "fiscal integrity of the Library" was a legitimate interest, Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040, 1048, and "[a]voiding the expense of litigation is a legitimate governmental interest," Neinast v. Bd. of Trustees of the Columbus Metro. Library (6th Cir.2003) 346 F. 3d 585, 594. By not making explicit whether or not these issues applied to this case by taking judicial notice of them, the Trial Court has failed to make a proper examination of the shoe rule and committed error.
It should also be noted that while the Library has made a big deal about avoiding potentially costly lawsuits, its intransigence on the shoe rule is what led directly to this costly lawsuit. Before this lawsuit was filed, Neinast provided the Library with reams of documentation on how trivial its safety concerns were; he also alerted it to the issue of statutory immunity. Yet, it persisted in making pretext upon pretext upon pretext to preserve that rule. And it has spent much more than it ever would while putting a bandage on some (extremely rare) barefoot injury.2
3. The Library Considers Civ.R. 65(C) a Nullity
In its Statement of the Case, the Library says that this Court "remanded the case for an evidentiary hearing." Nowhere does this Court's Opinion use the term "evidentiary hearing." Yes, this Court called for a "hearing" (but not an "evidentiary hearing"). Yes, this Court called for a "fair debate" and "a day in court", but it did not say that the Library was allowed to present new evidence contrary to Civ.R. 65(C). Whatever hearing was held should have used the evidence already in the record.
The Library would have this Court consider Civ.R. 65(C) and Dresher v. Burt (Ohio 1996), 75 Ohio St.3d 280, 1996-Ohio-107, nullities. The Library, in its response to Neinast's summary judgment motion, was required to point to evidence countering his evidence regarding the relative safety of going barefoot. The burden was on the Library, and it did not meet that burden. In the absence of any evidence contrary to what Neinast presented, a reasonable mind could come to no conclusion but that the shoe rule had no basis in law.
The Library made the strategic decision to put all of its eggs in the basket of collateral estoppel. In Costoff v. Akron General Medical Center (9th Dist. 2004), 2004-Ohio-5166 at ¶20, the court there said:
Ms. Costoff had ample opportunity to respond to the substance of the summary judgment motion in her own reply brief, to submit evidentiary material, or to argue a genuine issue of material fact, but instead chose to attack only the absence of the affidavit. This was her strategic decision. Just because the outcome of her decision was unfavorable does not necessitate the finding that she was denied procedural due process.
Litigants do not get do-overs for strategic decisions that go against them. Young v. Gorski (6th Dist. 2004), 2004-Ohio-1325, at ¶14, says:
Justice does not permit a second bite at the apple when a party failed to zealously represent her interests in the prior related case.
See also Mitchell v. International Flavors & Fragrances, Inc. (1st Dist. 2008), 902 N.E.2d 37, 179 Ohio App.3d 365, 2008-Ohio-3697 at ¶24. Admittedly, Young did not concern a failure to provide evidence to counter a summary judgment motion, but it is relevant to highlight the fact that the Library had every opportunity to protect its interests when responding to Neinast's summary judgment motion.
It must also be noted that the Library does not counter this issue by saying that it had supplied material facts in response to Neinast's summary judgment motion, or that, even without those facts a reasonable mind could not come to the conclusion that the shoe rule served no legitimate purpose. Justice here requires that the Library live with the strategic decisions that it made earlier in this case. That means that whatever hearing this Court mandated had to be based upon the evidence already in the record and that giving the Library a second bite of that apple was error.
4. The Evidence does not Support the Library's Promulgation of the Shoe Rule
The Library is incorrect to assert that Neinast's argument is that conflicts in the evidence are what require reversal. Neinast's argument instead has two prongs: first, that the Trial Court's entry makes determinative errors in what the testimony actually said; and second, that the evidence, as adduced through the testimony, does not meet the standards that the Library must meet for rulemaking.
Regarding manifest weight, the Library is correct in quoting The C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus, "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." The problem with the Trial Court's Entry was that it misstated the testimony (e.g., saying glass was common when it was not, ignoring that MRSA is ubiquitous so that transmittance is irrelevant, ignoring that Dr. Landers said a stand-along shoe rule in just a library is totally ineffective as a public health measure). This is not an issue regarding the credibility of the Library's witness-in-chief, Dr. Landers, who the Trial Judge was more than willing to credit, but that the Trial Judge misinterpreted what Dr. Landers said and improperly applied the law to this situation. The evidence does not go to all the essential elements of the case. What is essential is whether or not the evidence supports the standards that apply when an administrative body engages in rulemaking. And it does not. The Ohio Supreme Court also said, in State v. Wilson (Ohio 2007), 113 Ohio St.3d 382, 2007-Ohio-2202, at ¶24, "A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not." The Trial Court's error is not a difference of opinion on credibility, but in understanding the evidence, and applying the proper law to it.
The Library is also convinced that Neinast is re-arguing a decision of law of this Court that was decided against him earlier, saying "the argument that the Library does not have the authority to enact such a rule has been addressed and resolved in this case and should not be considered by this Court on this second appeal." Brief of Appellee at 16. That is incorrect.
The Library seems to think that all the Trial Court had to do to uphold the shoe rule was to find some sort of relationship to public health and public safety. That would make this Court's previous opinion redundant, for every action anyone ever takes has some relationship to public health and public safety. If one cannot think of such a relationship, that simply means one is not being creative enough. For instance, in DeWeese v. Palm Beach (11th Cir. 1987), 812 F.2d 1365, an ordinance requiring that shirts be worn on the streets of Palm Beach was overturned. However, if all it took was some relationship to public health and public safety for the ordinance to be upheld, that just shows that Palm Beach was not creative enough, for it could easily have been argued that such an ordinance protects against skin cancer. And if one wanted to argue just the opposite and say that shirts could not be worn, then the benefits of Vitamin D from exposure to the sun could have been touted instead.
What matters instead is what was the legislative intent regarding the sorts of rules libraries can make. What matters is whether the General Assembly has provided a public policy declaration to support any particular rule. That is the sort of analysis that the Trial Court was required to engage in as part of its examination of the shoe requirement to the public health and safety. Otherwise, the power of the Library truly is unfettered: any assertion regarding public health that was supported by any evidence would past muster. That was the whole point of Neinast's Brief of Appellant regarding reviewing the standards for rulemaking by administrative bodies and examining whether there is a discernible public policy declaration supporting any such rule. Doing so is particularly important for something like a police power rule since, as pointed out in Neinast's Brief of Appellant, other rulemaking bodies have explicit grants of police powers while libraries do not.
Under the Library's theory, the evidentiary hearing was really just about dotting i's and crossing t's. All it had to do was come up with any relationship to public health (which, as already shown, is trivial to do with a bit of creativity in almost all instances). That would have meant that this Court endorsed a charade that wasted a full day of the Trial Court's time. However, the substantive remand of this Court required, in actuality, not only some finding of impact on the public health and public safety, but also a weighing as to whether that impact met not only the rulemaking standards laid out in Neinast's Brief of Appellant, but the requirements that police power regulations must follow, viz, 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. A proper analysis of the evidence and testimony by the Trial Court would have shown that the shoe rule does not meet rulemaking standards. A proper analysis of the evidence and testimony by the Trial Court would have shown the shoe rule to be arbitrary, capricious and unreasonable, for it applies its MRSA fears only to one of many possible library situations (and the incident reports documented other, non-barefoot-related injuries that could equally be subjected to this kind of rulemaking, but was not). A proper analysis would also have shown no real and substantial relation to the subject sought to be obtained, for as Dr. Landers stated, to be effective, any such shoe rule would have to be part of a public health strategy promulgated by real health organizations.
In short, Neinast was not calling for this Court to re-examine an issue it already resolved,3 but to apply the law regarding rulemaking and grants of rulemaking powers to the specific facts that were elucidated in the evidentiary hearing. The law of the case has to have allowed that there were some conditions under which the shoe rule would be invalid, otherwise there was no point in remanding. Neinast contends that the conditions testified about during the evidentiary hearing were so weak and inconsequential that they do not meet the rulemaking standards laid out by the Ohio Supreme Court, and hence the shoe rule truly is invalid.
It must also be noted that nowhere in its brief did the Library argue that neither D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health (Ohio 2002), 96 Ohio St.3d 250, 2002-Ohio-4172, nor In re Guardianship of Spangler (Ohio 2010), 126 Ohio St.3d 339, 2010-Ohio-2471, applied to the Library's shoe rule. Yet, by the standards and examples of those two cases, there is no way the shoe rule could be legitimate. Arguments about misinterpreting this Court's mandate and the "law of the case" are all it has.
For these reasons, the judgment of the Trial Court should be reversed, the Library's shoe rule should be declared invalid and beyond the authority of the Library, and judgment for Neinast should be entered.
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. Jason M. Dolin, Assistant Prosecuting Attorney, Attorney for Defendants, 239 West Main Street — Suite 101, Lancaster, OH, 43130, this 25th day of July, 2011.
Robert A. Neinast
1. Before Chapter 3794 was enacted in 2006, that public policy declaration was contained in O.R.C. § 3791.031(B). [Back]
2. The Library begrudges the time "that employees of the Library are diverted from their general library duties when they are called upon to assist injured Library visitors" when it comes to some hypothetical barefoot injury, yet it doesn't seem to mind doing so for paper cuts (Tr. 113:2-4), or when a shod patron had fallen outside the Library (Defendant's Exhibit 9-G; Tr. 115:16-22), or when a bike rider (outside) bloodied his toe hitting the Library's loading dock (Defendant's Exhibit 9-K; Tr. 115:23-116:10). [Back]
3. However, even for resolved issues, "The doctrine [the law of the case] is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results." Nolan v. Nolan (1984), 11 Ohio St. 3d 1, 3. It would certainly be unjust to interpret the "law of the case" doctrine to mean that the result of a hearing on remand was pre-determined. [Back]
Code of Conduct