Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
|TABLE OF AUTHORITIES||iii|
|STATEMENT IN SUPPORT OF ORAL ARGUMENT||vii|
|STATEMENT OF THE ISSUES||1|
|STATEMENT OF THE CASE||2|
|STATEMENT OF THE FACTS||4|
|SUMMARY OF THE ARGUMENT||9|
|STANDARD OF REVIEW||11|
1. The Burden is on the Library to Demonstrate the Recited Harms that its Time, Place, and Manner Regulation Requiring Shoes Purports to Address, and the Library has not so Demonstrated
a. Analysis of Library Incidents Shows Faulty Conjecture and No Dangers to Barefooted Patrons
b. The Shoe Policy is Not Narrowly Tailored
c. Summary Judgment for the Library Should be Reversed and Summary Judgment for Neinast Should be Ordered
2. The Right of Personal Appearance is a Fundamental Right Found within the Ninth and Fourteenth Amendments
3. The Shoe Policy is an Expansion of the Police Power beyond its Traditional Boundaries
4. The Library Deprived Neinast of Due Process by Issuing a One-Day Eviction that was not Sanctioned by the Eviction Procedure, and by Enforcing an Invalid Regulation Masquerading as an Eviction Procedure Against Him
|CERTIFICATE OF COMPLIANCE||46|
|CERTIFICATE OF SERVICE||47|
|ADDENDUM (Designation of Joint Appendix Contents)||47|
|American Library Association v. United States, No. 01-1301, (E.D. Pa. May 31, 2002)||14|
|Aptheker v. Secretary of State, 378 U.S. 500 (1964)||29|
|Armstrong v. District of Columbia Public Library, 154 F.Supp.2d 67 (D.D.C. 2001)||13, 21|
|Beatie v. City of New York, 123 F.3d 707 (2d Cir. 1997)||35|
|Board of Trustees v. Fox, 492 U.S. 469 (1989)||14|
|Brinkman v. Ross, 68 Ohio St.3d 82 (Ohio 1992)||39|
|Cockrel v. Shelby County School Dist., 270 F.3d 1036 (6th Cir. 2001)||11|
|Columbus v. Truax, 7 Ohio App.3d 49 (Ohio App. 1983)||35|
|Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970)||31|
|DeWeese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987)||27|
|Edenfield v. Fane, 507 U. S. 761 (1993)||18|
|Eighth & Walnut Corp. v. Public Library, 57 Ohio App.2d 137, 385 N.E.2d 1324 (Ohio App. 1977)||43|
|Fair Housing Advocates Association, Inc. v. City of Richmond Heights, 209 F.3d 626 (6th Cir. 2000)||33|
|Fox v. Board of Trustees of State University of New York and Clifton R. Wharton, 841 F.2d 1207 (2nd Cir. 1988)||14|
|Goldblatt et al. v. Town of Hempstead, 369 U.S. 590 (1962)||33|
|Griswold v. Connecticut, 381 U.S. 479 (1965)||14, 24|
|Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir. 1999)||14|
|Helen L. v. Didario, 46 F.3d 325 (3d Cir. 1995)||22|
|Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970)||29|
|Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972)||30|
|Kelley v. Johnson, 425 U.S. 238 (1976)||27, 28|
|Kent v. Dulles, 357 U.S. 116 (1958)||29|
|Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992)||13, 14, 15|
|Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972)||30|
|Lapides v. Board of Regents of the University System of Georgia, No. 01-298, 535 U.S. ___ (2002)||43|
|Lawton v. Steele, 152 U.S. 133 (1894)||33|
|Mainstream Loudoun v. Bd. of Trustees of the Loudoun Cty. Library, 24 F.Supp. 2d 552 (E.D. Va. 1998)||13|
|Martin v. City of Struthers, 319 U.S. 141 (1943)||14|
|Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)||11|
|Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271 (Ohio 1937)||42|
|Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)||38|
|Moore v. Philip Morris Cos., 8 F.3d 335 (6th Cir. 1993)||12|
|Olmstead v. United States, 277 U. S. 438 (1928)||38|
|People v. O'Gorman, 274 N.Y. 284 (N.Y. 1937)||27|
|Perry Educ. Ass'n. v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983)||14|
|Richards v. Texas, 743 S.W.2d 747 (Tex. 1987)||37|
|Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)||32|
|Siglow v. Smart, 43 Ohio App.3d 55, 539 N.E.2d 636 (Ohio App. 1987)||39|
|Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985)||43|
|Stanley v. Georgia, 394 U.S. 564 (1969)||14|
|State v. Batsch, 44 Ohio App.3d 81 (Ohio App. 1988)||36|
|State v. Craig, 19 Ohio App.2d 29, 249 N.E.2d 75 (Ohio App. 1969)||34|
|State v. Kohrig, 498 N.E.2d 1158, 113 Ill. 2d 384, 101 Ill. Dec. 650 (Ill. 1986)||36|
|State v. Lombardi, 241 A.2d 625 (R.I. 1968)||35|
|Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303 (8th Cir. 1977)||30|
|Street v. Bradford, 886 F.2d 1472 (6th Cir. 1989)||21|
|Sund v. City of Wichita Falls, 121 F.Supp.2d, 530 (N.D. Tex. 2000)||14|
|Syrek v. Pennsylvania Air National Guard, 537 F.2d 66 (3rd Cir. 1976)||31|
|Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)||13|
|United States v. Albers, 226 F.3d 989 (9th Cir. 2000)||37|
|United States v. Kokinda, et al., 497 U.S. 720 (1990)||28|
|United States v. O'Brien, 391 U.S. 367 (1968)||20|
|United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000)||13|
|Ward v. Rock Against Racism, 491 U.S. 781 (1989)||20|
|Washington et al. v. Glucksberg et al., 521 U. S. 702 (1997)||24|
|U.S. Constitution, Amendment I||11, 28|
|U.S. Constitution, Amendment IX||23|
|U.S. Constitution, Amendment XIV||24|
|28 U.S.C. Section 1441(c)||43|
|Ohio Revised Code Chapter 119||45|
|Ohio Revised Code Section 3375.40||42|
|Ohio Revised Code Section 3709.21||43|
|1 Annals of Congress 759-760 (Gales & Seaton ed. 1834)||23|
|The New Encyclopædia Brittanica, 15th Edition (2002)||18|
Due to the important First Amendment and other constitutional issues in this case, Plaintiff-Appellant requests oral argument. This case also presents two matters of first impression in the Circuit that would benefit from oral argument: the right to receive speech at a designated public forum, and the right of personal appearance of an adult citizen who is not a government employee.
This is an appeal of the final order of the Honorable Algenon P. Marbley, Judge, of the United States District Court for the Southern District of Ohio, Eastern Division, entered March 27, 2002, granting summary judgment in favor of Defendants-Appellees, and denying summary judgment in favor of Plaintiff-Appellant. The District Court had jurisdiction over Plaintiff's claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331. The case arrived in District Court after being removed from State Court pursuant to U.S.C. § 1441(b); the District Court had jurisdiction over Plaintiff's state law claims pursuant to U.S.C. § 1441(c). The United States Court of Appeals for the Sixth Circuit has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The notice of appeal was timely filed on April 25, 2002.
1. Is a time, place, and manner regulation on receiving speech at a designated public forum such as a library valid when the harms that the regulation purports to address are not demonstrated, are based upon myth or misconception, and are in fact pretextual?
2. Is the right of personal appearance, discussed in the House debate on the Bill of Rights as a right that no Government would infringe, a fundamental right?
3. May the police power of the state be expanded beyond its traditional boundaries to ostensibly protect a person from injuring himself or herself, when the person's actions have no impact on the health or safety of the general public, and neither the risk nor severity of any hypothetical injury to that person is substantial?
4. May a Library, as a body politic and corporate, exercise the police power regarding the public health and safety, when such exercise is not authorized under State statute, and such exercise is unrelated to the proper management and operation of the Library?
This lawsuit arose when the Columbus Metropolitan Library evicted Plaintiff-Appellant Robert A. Neinast multiple times for using the Library barefoot. Neinast claims these evictions 1) violated his First Amendment right to receive speech from the Library, a designated public forum dedicated specifically for patrons to receive the speech contained in their materials; 2) violated his penumbral First and Ninth Amendment right of personal appearance to choose what he wears without governmental interference; and 3) violated his Fourteenth Amendment due process rights by a) enforcing against him an eviction procedure that is invalid and not authorized under state law, and b) not providing the procedural due process specified in the eviction procedure.
The Library thinks that being barefoot is inappropriate dress for a public place and has, without authority, imposed a dress code to prohibit this idiosyncratic but harmless mode of dress. They are relying, however, upon myths and misconceptions to claim that their shoe policy protects the health and safety of the general public and protects the fiscal integrity of the Library.
Neinast originally filed this 42 U.S.C. § 1983 suit in state court; the Library removed it to federal court. The Library filed a motion for Summary Judgment. Neinast filed a cross-motion for Summary Judgment. After oral argument, the District Court granted Summary Judgment for the Library. Neinast appeals the District Court's grant of Summary Judgment for the Library, and appeals the denial of Summary Judgment for Neinast.
This case presents two matters of first impression in the Circuit: the right to receive speech at a designated public forum, and the right of personal appearance of an adult citizen who is not a government employee.
Plaintiff-Appellant, Robert A. Neinast ("Neinast"), is a resident of Pickerington, Ohio, who chooses to go barefoot almost continuously (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 1, ¶ 1; Jt. Apx.1 ref. 1). Defendant, Board of Trustees of the Columbus Metropolitan Library ("The Board"), is a body that serves as a regulating authority of the Columbus Metropolitan Library ("the Library"). Neinast often utilizes the Library. Defendant, Larry D. Black ("Black"), is the Director of the Library and Defendant, Vonzell Johnson ("Johnson"), is the Assistant Manager of Security for the Library.
From 1997 through 2001, Neinast was asked to leave the Library on several different occasions because he did not comply with the Library's policy that required wearing shoes while on its premises. On September 12, 1997, Neinast was asked for the first time to leave the Library for not wearing shoes (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 5, ¶ 12; Jt. Apx. ref. 2). In November 2000, Neinast was again informed that he would have to wear shoes in order to use the Library's facilities (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 5, ¶ 14; Jt. Apx. ref. 3). In January 2001, Neinast was asked to leave for the same reason (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 6, ¶ 15; Jt. Apx. ref. 4). On March 2, 2001, Neinast entered the Library barefoot, and was subsequently presented with a one-day eviction from the Library that was approved by Defendant Johnson (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 6, ¶ 16; Jt. Apx. ref. 5). The Patron Regulations of the Library do not contain a prohibition on using the Library without shoes, nor any regulation that could be interpreted as requiring shoes (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 82; Jt. Apx. ref. 6). The Library's internal administrative procedure, the Eviction Procedure (the "shoe policy"), however, claiming that not wearing shoes is "inappropriate dress" (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 93; Jt. Apx. ref. 7), does provide that patrons not wearing shoes be given a warning, and that they should be "asked to leave the premises to correct the problem". (Id.)
After being asked to leave, Neinast wrote letters to Defendant Black and members of the Board, complaining of the enforcement of the Eviction Procedure and its inconsistency with the Patron Regulations (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 99-102; Jt. Apx. ref. 8). In response, the President of the Board informed Neinast that Mr. Black was granted the authority to make such a decision (R. 11; Def. Motion, Exhibit A, Attachment 3; Jt. Apx. ref. 9). Under the Library Organization Policy, the Executive Director has authority in "determining internal policies and procedures [for] * * * public relations, relations with the community and governmental agencies, and the handling of all other matters involved with the operation of the library system." (R. 11; Def. Motion, Exhibit A, Attachment 1, pg. 1; Jt. Apx. ref. 10.) In addition, Black asked the Franklin County Prosecutor's Office for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 97; Jt. Apx. ref. 11.) Subsequently, the Prosecutor's office issued in an opinion supporting the view that the regulation requiring shoes was constitutional (R. 11; Def. Motion, Exhibit A, Attachment 4; Jt. Apx. ref. 12).
Neinast sent a follow-up letter to Defendant Black and Philip C. Johnston, who became President of the Board in January 2001 (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, Attachment J; Jt. Apx. ref. 13), and Black responded, saying that any further letters from Neinast would be ignored (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, Attachment K; Jt. Apx. ref. 14).
Through affidavits and discovery, the following additional facts were established:
There are no Columbus Health Department regulations requiring shoes inside public buildings (R. 13; Pla. Motion and Memo. Contra, Exhibit 4; Jt. Apx. ref. 15).
Neinast regularly carries letters from the Ohio Department of Health, the Franklin County Board of Health, and the Columbus Health Department to demonstrate to businesses that there are no health department regulations requiring shoes in public buildings. (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, Attachments A, B, and C; Jt. Apx. refs. 16, 17, and 18.)
The Library's insurance policy has no requirement that its patrons wear shoes (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, pg. 2; Jt. Apx. ref. 19).
The Library has no equivalent Eviction Procedure protecting the health and safety of children by preventing them from playing on the floors that the Library claims are too dangerous to walk on barefoot (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 93-95; Jt. Apx. ref. 20). (See also the discussion of this point in R. 13; Pla. Motion and Memo. Contra, pg. 13, fn. 8.)
The shoe policy only applies inside the Library building proper, but not on the exterior grounds nor the indoor parking lot (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 5, ¶ 12; Jt. Apx. ref. 21). (See also the discussion of this point in R. 13; Pla. Motion and Memo. Contra, pg. 16.)
Neinast's using the Library in his bare feet did not disrupt the Library (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 7, ¶¶ 19-20; Jt. Apx. ref. 22) (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, pg. 2; Jt. Apx. ref. 23), and in many cases was not even noticed (Id.).
There is nothing in the record that shows that bare feet are unhygienic or affect the health or safety of any other patron or employee of the Library.
On all occasions when he was asked to leave, Neinast was using the Library's material in the manner in which it was intended to be used (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 6, ¶¶ 15-16; Jt. Apx. ref. 24).
Upon a third (and any subsequent) violation of the shoe policy, the Eviction Procedure specifies that the offender should be asked to leave and be allowed to re-enter when the problem is corrected (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 93; Jt. Apx. ref. 25).
The Library, upon stopping Neinast the third time for not wearing shoes, issued a one-day eviction (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, Attachment A, pg. 2; Jt. Apx. ref. 26).
In response to an interrogatory asking for incidents of hazardous materials in public areas, the Library provided approximately 99 security incidents from the last five years. (See R. 14; Def. Reply and Memo. Contra, Appendix.)
The District Court erred by not addressing head-on any of the points of law raised in this case. Although the District Court assumed (instead of acknowledging) the well-accepted right to receive speech, and claimed to analyze the Library's time, place, and manner regulation under intermediate scrutiny, it did so incorrectly. It placed the burden upon Neinast to demonstrate the falsity of the Library's fears regarding the supposed dangers of being barefoot, instead of on the Library, where the burden actually lies. The Library's listing of supposed hazards in the Library contained no causal connection between the supposed hazard and a danger to a barefooted patron, and did not show how their shoe policy ameliorated that supposed danger. Again, the burden was on the Library to do so.
The District Court also failed to acknowledge, as a matter of law, the existence of the right of personal appearance, either as a fundamental right or as a protected liberty interest. This right was mentioned during the debate in the House of Representatives during the hearings over the Bill of Rights, but was not included in the Bill of Rights as being too "trivial" and obvious, and as being in an area in which no government would intrude. Those court cases involving dress that have been decided in the government's favor have always involved competing and compelling governmental interests (the authority of the government to decide the appearance of their uniformed employees, or the schooling of our minor children) that reduced the scrutiny applied and dictated a balancing test. No such compelling interest lies here.
The District Court also erred as a matter of law by accepting the Library's claim that their shoe policy protected the health and safety of the general public. This aspect of the police power has always been invoked to protect others, not to protect a person from himself or herself. There was no claim that Neinast's going barefoot affected others in the least. The District Court's acceptance of this as a legitimate government interest is unique, is in error, and would allow a wholesale expansion of governmental power.
Finally, the District Court erred by ruling that the issuing of a one-day eviction by the Library in contravention to their published Eviction Procedure was "administrative rulemaking." Determining and applying punishment is clearly a judicial function. In addition, by creating and enforcing the shoe policy without authority to do so, Mr. Black's actions were ultra vires, and did not provide Neinast with due process.
The Court of Appeals reviews the District Court's grant of summary judgment de novo, applying the same standards as those applied by the District Court. Cockrel v. Shelby County School Dist., 270 F.3d 1036 (6th Cir. 2001).
In order to grant Summary Judgment for the Library, the District Court was required to "view all the facts and the inferences drawn therefrom in the light most favorable to the nonmoving party," Q> E8> that is, Neinast. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This was not done. For instance, the fact that the Columbus Health Department has no regulations requiring users of public buildings to wear shoes speaks volumes about the lack of danger. Health Departments are the experts on the health and safety of the general public, not library administrators who believe that bare feet are inappropriate dress. The expertise of Health Departments raises much more than "metaphysical doubt as to the material facts" Q>) (Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993)) that there is no public health risk to using a library, or any public building, barefoot. Additionally, the Library's insurance policy contains nothing requiring that the Library enforce a shoe policy. The "inference drawn therefrom in the light most favorable to the nonmoving party" would be that there are no cognizable hazards to allowing barefooted patrons, yet the District Court did not do so. Furthermore, Neinast has gone consistently barefoot to all sorts of places for over 5 years, including 20-mile hikes, on paved trails, on backcountry trails, on city streets and sidewalks, in stores, in restaurants, in schools, and in federal buildings (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 4, ¶ 9; Jt. Apx. ref. 27). If anyone could recognize what constituted a danger to a barefooted person, it would be he. Yet, his testimony in his affidavit that the Library contained no hazards special to bare feet (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 5, ¶ 11; Jt. Apx. ref. 28) was ignored by the District Court, instead of being interpreted in his favor, as required under the Summary Judgment standard. This hasty grant of Summary Judgment has prevented Neinast from presenting any sort of expert medical or safety testimony to demonstrate that the Library's irrational fears are simply ignorance born of myth, misconception, and misplaced "common sense".
But there is a far larger problem with the District Court's analysis of the Library's policy. As a time, place, and manner restriction on receiving speech, the burden is entirely upon the Library to demonstrate, "that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994). "When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 816 (2000). The Library has failed to even address, let alone meet, this burden.
There is no doubt that a public library is a designated public forum, dedicated for the use of the public to receive the speech contained within the library's volumes. Kreimer v. Bureau of Police, 958 F.2d 1242, 1257 (3d Cir. 1992); Mainstream Loudoun v. Bd. of Trustees of the Loudoun Cty. Library, 24 F.Supp. 2d 552, 563 (E.D. Va. 1998); Armstrong v. District of Columbia Public Library, 154 F.Supp.2d 67, 75 (D.D.C. 2001); Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir. 1999); American Library Association v. United States, No. 01-1301, p. 117 (E.D. Pa. May 31, 2002) (not yet published2 ). Furthermore, even though it is not required to operate such a forum, once the government does so, it "is bound by the same standards as apply in a traditional public forum." Q>) Perry Educ. Ass'n. v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983). There is also no doubt that the right of free speech equally encompasses both the right to produce speech and the right to receive speech. Kreimer, 958 F.2d, at 1250-1255; Sund v. City of Wichita Falls, 121 F.Supp.2d, 530, 547 (N.D. Tex. 2000); Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Stanley v. Georgia, 394 U.S. 564 (1969); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ("The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read * * *" Q>); Fox v. Board of Trustees of State University of New York and Clifton R. Wharton, 841 F.2d 1207 (2nd Cir. 1988) (reversed on other grounds, Board of Trustees v. Fox, 492 U.S. 469 (1989)). As such, those patrons using the library for its intended purpose are receiving speech, and any regulations affecting them are time, place, and manner regulations requiring intermediate scrutiny.
The analysis in Kreimer is thorough and compelling: regulations regarding patron behavior when the patron is not using the library for its intended purpose (such as sleeping or harassing library staff) need only be reasonable and follow the rational basis standard; regulations regarding patron behavior while engaged in using the library for its intended purpose (receiving speech by accessing Library materials) are subject to the stricter standard of review, since otherwise the regulation "would require the expulsion of a patron who might otherwise be peacefully engaged in permissible First Amendment activities within the purpose for which the Library was opened, such as reading, writing or quiet contemplation." Q> Kreimer, 958 F.2d, at 1264.3
The undisputed facts show that Neinast was using the Library for its intended purpose when he was asked to leave, and that his bare feet did not disrupt the library. Heightened scrutiny is required; the regulation, as a time, place, and manner restriction must be "narrowly tailored to achieve a significant governmental interest," and the burden is on the Library to demonstrate the harms that it claims its policy will alleviate.
The Library claims that the shoe policy was promulgated to protect the health and safety of the Library's patrons (despite the evidence to the contrary that clearly indicates that the policy was created to ban what it considered inappropriate dress), saying that there are infrequent incidents in the Library that present a danger to barefooted patrons, and that their shoe policy addresses this danger.
The Library, to bolster their claim of unacceptable dangers on their floors, presented a mere 99 incident reports covering the entire library system over the past five years, and pointed to a few incidents of feces, semen, blood, and broken glass (the majority of the incidents involved slips and falls on ice or puddles of water,4 or various acts of vandalism). The feces, semen, and blood were dramatically referred to as "biohazards." What is lacking to demonstrate any potential danger is any medical, scientific, or safety information connecting their "biohazards" to a health and safety problem, and any medical, scientific, or safety information that requiring shoes will alleviate those harms in a direct and material way.
There were three incidents over the 5-year period that involved blood. In the first, someone wrote with a bloody tampon on the wall of the women's restroom. (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 14; Jt. Apx. ref. 32). This demonstrates no danger to a barefooted patron, but is typical of the level of jeopardy presented by these "biohazards". In the second, a pane of broken safety glass was discovered, with possible drops of blood. (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 27; Jt. Apx. ref. 33). The glass was outside the building, where the shoe policy does not even apply, so the shoe policy would not alleviate any harm. Furthermore, tempered safety glass shatters into small pieces without sharp edges, so, once on the ground, this would not even be a hazard to a barefooted patron regardless of location. In the third incident, a man attempted suicide in one of the stalls of the men's room (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 112; Jt. Apx. ref. 34). The attempted suicide was discovered due to the large pool of blood on the floor around the stall. This situation, while unfortunate, does not demonstrate any potential of harm to a barefooted patron. First, it was not in the Library proper, but in a restroom; second, it was a large and obvious situation that would be easily avoided.
No danger from blood has been demonstrated by the Library, as required. Nonetheless, during oral argument, the District Court constructed a contrived example requiring that a barefooted patron have an unnoticed crack or cut on their foot, that the barefooted patron somehow miss seeing blood on the floor, that the blood have come from a person with AIDS, and that the barefooted patron catch the AIDS and die. (TX; Oral Arg. Transcript, pg. 7; Jt. Apx. ref. 35). With all due respect to Judge Marbley, he is neither a doctor nor a health professional. It is well known that AIDS cannot be transmitted in this fashion. "HIV is not spread by coughing, sneezing, or casual contact. HIV is fragile and cannot survive long outside of the body." The New Encyclopædia Brittanica, 15th Edition, Micropædia, Vol. 1, p. 170 (2002). This is the sort of conjecture that, when free speech is at issue, cannot be accepted. Edenfield v. Fane, 507 U. S. 761, 770-771 (1993). It is up to the Library to demonstrate a valid causal connection.
There was one incident involving semen. (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 158; Jt. Apx. ref. 36). Used condoms were thrown into the lobby of the Hilltop branch. What is lacking is even any sort of conjecture as to how this is a danger to a barefooted patron. Assuming that the barefooted patron managed to miss seeing the condoms and stepped on one, where is the evidence of any danger? It would certainly be disgusting, but the Library has presented no medical evidence that casual contact with semen on the skin produces any sort of health or safety issue. And the burden is on the Library, not Neinast, to do so.
There were 12 incidents of feces; 11 of them were in the restrooms. The one incident in the Library proper was detected by its odor. (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 80; Jt. Apx. ref. 37). But what is again lacking is any evidence from the Library that this presented any danger to a barefooted patron. Feces on the floor are certainly unpleasant and disgusting, but the Library has presented no medical evidence about how it presents a cognizable health hazard, for it is not, unless the presence of feces is so ubiquitous that people end up accidently ingesting it. There was furthermore no evidence of pathogens present. There is no evidence even of how some hypothetical pathogen that might be in a lone stool would transmit itself through human skin. There is nothing here but conjecture.
Finally, there were 15 incidents of broken glass on Library grounds. All of them were outside the Library proper, where the barefoot policy uncontestedly does not apply. (See the discussion in R. 13; Pla. Motion and Memo. Contra, pg. 16; Jt. Apx. ref. 38). Again, even if it were inside the Library proper, tempered safety glass breaks into pieces that are not dangerous to step on. The Library cannot justify its policy on these grounds.
The Library's time, place, and manner shoe policy must be "narrowly tailored to achieve a significant governmental interest." Q> E10> United States v. O'Brien, 391 U.S. 367, 377 (1968). While narrow tailoring in the intermediate scrutiny context does not mean it has to be the least-speech-restrictive alternative, the means chosen cannot be "substantially broader than necessary to achieve the government's interest." Q> Ward v. Rock Against Racism, 491 U.S. 781, 783 (1989). But the shoe policy is substantially broader than necessary, even if one assumes that the Library's incidents constitute hazards to barefooted patrons. The incidents were almost exclusively in the restrooms or outside the Library buildings proper. Yet, shoes are still required everywhere in the Library buildings, even amongst the books. The inside of a Library is probably one of the safest places imaginable for walking barefoot. Under the Library's policy, even sitting in a chair reading a book with one's shoes off is a violation,5 yet presumably not even the Library would claim a hazard in that.
As a side note, the shoe policy is also assuredly unconstitutionally vague, as written (though not necessarily as applied). It prohibits "inappropriate dress," Q> which puts patrons' access to the Library materials totally at the discretion of what Library personnel consider "inappropriate dress". Armstrong, 154 F.Supp.2d, at 81-82.
These errors of law by the District Court demand that Summary Judgment for the Library in regards to Neinast's First Cause of Action be reversed. Furthermore, the Library did not meet its burden, as a matter of law, to provide more than "metaphysical" evidence of a causal connection between their rule and their incidents. "[H]aving had sufficient opportunity for discovery, [the Library] has no evidence to support an essential element of [its] case." Q> Street v. Bradford, 886 F.2d 1472, 1479 (6th Cir. 1989). The Library had its opportunity to present an affidavit or other evidence from the Columbus Health Department or a medical or safety expert that tampon blood on the wall of a restroom is a safety hazard to a barefooted patron, yet the record is tellingly silent. The Library had its opportunity to present an affidavit or other evidence from the Columbus Health Department or a medical or safety expert that a lone stool on the floor would dependably contain a pathogen that would reliably be transmitted to a barefooted patron, yet again the record is tellingly silent. The Library simply has not met its burden under the law to show more than "metaphysical" evidence, and it certainly has not met is burden to show either that the recited harms are real, or that their shoe policy will alleviate these harms in a direct and material way.
Summary Judgment for Neinast on his First Cause of Action should be ordered. "[W]hen an appeal concerns only issues of law, we are free to enter an order directing the district court to enter summary judgment in favor of the appellant." Helen L. v. Didario, 46 F.3d 325, 339 (3d Cir. 1995).
The District Court erred as a matter of law by not recognizing the right of personal appearance as a fundamental right that requires the state to show a compelling governmental interest to infringe. At the least, the District Court should have recognized it as a protected liberty interest more than strong enough to overcome the Library's weak and irrational justification for requiring Neinast to wear shoes to use the Library, particularly since, as shown supra, that justification relies on factually inaccurate speculation for support and, as shown, infra, that justification relies on the invocation of an invalid governmental interest.
The Ninth Amendment to the United States Constitution reads
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
During the ratification debate in the House of Representatives over the Bill of Rights, 1 Annals of Congress 759-760 (Gales & Seaton ed. 1834) (R. 13; Pla. Motion and Memo. Contra, Exhibit 10; Jt. Apx. ref. 40), as part of the debate over whether to include the freedom of assembly,6 the discussion turned to whether the government could force a citizen to wear a hat7 (the answer being "no"), and ended with Representative Hartley observing "that all the rights and powers that were not given to the Government were retained by the States and the people thereof." This makes it clear that the right of personal appearance is a right to be found within the Ninth Amendment, and, as Representative Sedgwick had earlier observed, "he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government in which none of them were intended to be infringed." This "trifle" of a right has, historically, not been infringed against the citizens. But the Government, in the form of the Library, is doing so here.
The Supreme Court, in Griswold v. Connecticut, 381 U.S. 479, 488 (1965), stated
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. Q>
Here we have seen the Framers in action approving of the right of personal appearance and considering it within the Ninth Amendment (which would then be incorporated against the States by the Fourteenth Amendment). If the right of personal appearance is not contained within the Ninth Amendment, then the Ninth Amendment truly is an inkblot without meaning.
The Supreme Court's criteria for recognizing a fundamental right are summarized in Washington et al. v. Glucksberg et al., 521 U. S. 702, 720-21 (1997):
First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," [Moore v. East Cleveland, 431 U. S. 494], at 503 (plurality opinion); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) "so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. [Reno v. ] Flores, [507 U. S. 292 (1993)], supra, at 302; Collins [ v. Harker Heights, 503 U. S. 115 (1992)], supra, at 125; Cruzan [ v. Director, Missouri Dept. of Health, 497 U. S. 261 (1990)], supra, at 277-278. Our Nation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decisionmaking," Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment "forbids the government to infringe . . . `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." 507 U. S., at 302. Q>
The right to dress as we please is clearly "deeply rooted in this Nation's history and tradition." The general public's disgust at the dress codes of the Taliban strongly indicate this country's embracing of the existence of the right of personal appearance. One need only look at the history of fashion in this country to see that the people expect the Government to keep its hands off. Styles of clothing have changed throughout the history of the country, without Government interference of any sort. We have had immigrants from all over the world, each bringing their own style of dress, with each national dress accepted and incorporated in its turn. Hair styles, for both men and women, have varied from long to short, from greasy to dry, and from dyed to natural. Beards come and go. And, for common citizens, the Government has not intruded. Furthermore, as already demonstrated, these historical roots go all the way back to the debate on the Bill of Rights.
Going barefoot, as part of the right of personal appearance, also has deep historical roots. One need only look at the stories of Mark Twain, at the totally barefoot life of Johnny Appleseed, at the biography of Abraham Lincoln before age 21 (Sandburg, Carl, "Abraham Lincoln, The Prairie Years - I," Charles Scribner's Sons, New York, 1947, p. 49), or at the barefoot hippy days of the 1960s-1970s (See "Footloose in San Francisco," San Francisco Chronicle, April 3, 1969 (R. 13; Pla. Motion and Memo. Contra, Exhibit 11; Jt. Apx. ref. 41)) to see those roots. Even today, the Amish and others are often barefoot. Shoe requirements, even in those few private businesses that have them, are quite recent, and part of a private business' authority to restrict its customers for any reason whatsoever (as long as it does not violate civil rights laws). The Government is not allowed to be so arbitrary.
The deep roots of the history and tradition of the right of personal appearance is attested to by the paucity of cases addressing it, since the right is so rarely infringed upon by Government. A survey of cases addressing the right was provided in Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment (R. 13; Pla. Motion and Memo. Contra, pp. 21-25; Jt. Apx. ref. 42). Almost all of the cases result from the tension between the right of personal appearance and compelling governmental interests, such as the government's interest as an employer, or the government's interest in educating our minor schoolchildren. In the very few cases in which a dress code was imposed upon an ordinary citizen, the dress code was held unconstitutional. See, e.g., People v. O'Gorman, 274 N.Y. 284 (N.Y. 1937) (Ordinance requiring people on the streets to wear "customary street attire", and enforced against a young woman wearing shorts, sandals, no stockings, and halter, held unconstitutional); DeWeese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987) (Ordinance requiring joggers on city streets to wear a shirt declared unconstitutional).
Allowing people to dress as they wish is also "implicit in the concept of ordered liberty," that is, freedom that does not lead to the disorder of society. Little can be more intrinsic to the freedom of a person than to decide how they wish to appear, or what they prefer to wear. And choice of dress does not lead to the disorder of society. This fundamental right also has a "careful description": Average citizens have the right to clothe or adorn themselves as they wish, absent actual indecency.
The District Court erred as a matter of law by ruling that Kelley v. Johnson, 425 U.S. 238 (1976) precludes recognition of the right of personal appearance. The Kelley Court assumed that the right existed (using the well-known principle that the court will not rule on a constitutional question if the case can be decided without doing so), but decided that since Kelley was a uniformed police officer, a balancing test was appropriate. Under that balancing test, it was reasonable for the state to control the dress of its para-military employees. The Supreme Court applied the same reduction in scrutiny that it does in First Amendment speech cases. As pointed out in Kelley,
More recently, we have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment. If such state regulations may survive challenges based on the explicit language of the First Amendment, there is surely even more room for restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment. Q>
425 U.S., at 245. (Citations removed.)
This principle of the reduction of scrutiny for internal government operations is well-supported. As the Supreme Court said in United States v. Kokinda, et al., 497 U.S. 720, 725 (1990):
It is a long-settled principle that governmental actions are subject to a lower level of First Amendment scrutiny when "the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, . . . but, rather, as proprietor, to manage [its] internal operation[s] . . . ." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). Q>
However, Neinast is a common citizen and is not a government employee. In Kelley, the Supreme Court noted
Certainly its language cannot be taken to suggest that the claim of a member of a uniformed civilian service based on the "liberty" interest protected by the Fourteenth Amendment must necessarily be treated for constitutional purposes the same as a similar claim by a member of the general public. Q>
425 U.S., at 249. The converse also applies: Neinast's claim as a member of the general public should not be treated the same as the claim of a government employee. If the Library wishes to require that its librarians wear shoes, then a rational basis is sufficient; however, to impose the same requirement on its patrons demands a stricter scrutiny.
Furthermore, the Supreme Court has recognized the strength of the right of personal appearance. In both Kent v. Dulles, 357 U.S. 116 (1958), and Aptheker v. Secretary of State, 378 U.S. 500 (1964), the constitutionally recognized right to travel was seen as less fundamental than the right of an individual to choose what he "eats, or wears, or reads." Q> Q> 357 U.S., at 126; 378 U.S., at 506.
The District Court also erred by holding that Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970), precluded recognition of the right of personal appearance in this case.8 Jackson was a case about the right of schoolboys to wear their hair long, which was decided in the school's favor. The Jackson decision is easily distinguishable and is not appropriate here, since the context of the decision was the school environment. In fact, the Jackson Court did not even address whether an independent right of personal appearance even existed ("We agree with Judge Gray that `the growing of hair for purely commercial purposes is not protected by the First Amendment's guarantee of freedom of speech.'" Q>; "It is further contended that the constitutional right of privacy of the students and their parents has been impaired * * *. We find the contention to be without merit under the record in this case." Q>).9 The context of the schoolhouse environment permeates all similar decisions throughout the Circuits addressing the right of personal appearance. However, the critical factor is that the level of scrutiny is also reduced in these situations, due to the compelling state interest in the education of our minor children. As stated in Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1309 (8th Cir. 1977): "[W]hile a lesser standard of scrutiny is appropriate because of the public school setting, a proportionately greater level of scrutiny is required because the regulation reaches the exercise of free speech." (Emphasis added.) Again, due to the lesser scrutiny, a balancing test was used. It is instructive to compare Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) and Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972), both in the Fifth Circuit. Karr upheld the ability of a school to regulate a minor schoolchild's hair, but in Lansdale, a similar regulation enforced against a non-minor college student was declared invalid.
No such diminution of the level of scrutiny applies in this case. Neinast is neither a government employee nor a schoolchild. The District Court should have held that the right of personal appearance existed and was operating in full force in the Library, such as in Crews v. Cloncs, 432 F.2d 1259, 1263 (7th Cir. 1970) ("Our holding rested upon the premise that the Constitution contemplates protection for `additional fundamental right[s] * * * which exist alongside those fundamental rights specifically mentioned in the first eight amendments.'" Q>). However, even if the District Court did not recognize the right as fundamental, it should have at least followed the lead of Syrek v. Pennsylvania Air National Guard, 537 F.2d 66, 67 (3rd Cir. 1976) ("However, contrary to the district court's understanding, a majority of this court in Zeller held that state regulation of hair length could constitute an invasion of constitutionally protected `liberty'"), and other similar cases and recognized it as a liberty interest requiring heightened scrutiny:
[W]hen the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, "this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." Q>
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 71 (1981).
These errors of law by the District Court demand that Summary Judgment for the Library in regards to Neinast's Second Cause of Action be reversed and the case remanded. The right of personal appearance is a fundamental right for which the Library has shown no compelling governmental interest. Or, in the alternative, the right of personal appearance is a protected liberty interest requiring a heightened scrutiny, and the Library's weak justification simply cannot survive such scrutiny. Furthermore, the lack of a causal connection between the Library's incidents and their supposed hazards required that Summary Judgment for Neinast instead be ordered for his Second Cause of Action.
The District Court erred by accepting the Library's claim to a legitimate and/or substantial governmental interest in protecting Neinast from himself. It is claimed that their interest is a part of the police power to protect the health and safety of the general public. But this police power has never before been used to prohibit a citizen from engaging in an everyday activity when that activity has no impact on the health and safety of any other person, and it has nowhere been suggested that Neinast's going barefoot in the Library has any impact on others. The criteria that have always applied regarding the exercise of this police power have been activities:
1. Directly endangering others; or
2. Indirectly affecting the public weal because of the documented risk of severe injury that would make the person a public charge or otherwise claim substantial governmental resources.
The "classic" statement of this police power is at Lawton v. Steele, 152 U.S. 133, 137 (1894):
To justify the state in thus interposing its authority in behalf of the public, it must appear-First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. Q>
(Emphasis added.) This has been quoted as recently as 1962 by the U.S. Supreme Court, Goldblatt et al. v. Town of Hempstead, 369 U.S. 590, 594 (1962), and 2000 by the Sixth Circuit Court of Appeals, Fair Housing Advocates Association, Inc. v. City of Richmond Heights, 209 F.3d 626, 643 (6th Cir. 2000) (concurrence). In this case, the state is not interposing its authority on behalf of the public, just against a particular class; and against that class' will and without evidence, at that.
If a governmental entity can claim a broad expansion of this police power based on conjecture that an individual might hurt himself or herself, no matter how minor the injury and no matter how small the risk, then every activity of the citizenry becomes subject to the whims of functionaries everywhere. Will the State Park system require a sunscreen check before allowing a person on the beach? Or maybe, to ensure that its citizens protect their health by getting enough sleep, the government could declare that no longer might a citizen "get up when he pleased, and go to bed when he thought proper." In fact, the particulars of the Library's shoe policy make it indistinguishable from a hypothetical ban on bare feet on State Park beaches, since they too have incidents of feces in their restrooms, or blood, broken glass, and the possible presence of used condoms on their grounds.
Even for instances in which one might suspect that a regulation or statute is protecting a person from himself or herself, in all instances the regulation has been justified by its impact on the public at large by either or both of the two criteria above. Examples include:
Motorcycle helmet laws, justified by the risk to the public if the motorcycle driver gets hit in the head by an errant rock and loses control of the vehicle, and by the cost to society of dealing with the sort of massive head injury that could result in from an accident. See, e.g., State v. Craig, 19 Ohio App.2d 29, 249 N.E.2d 75 (Ohio App. 1969) ("* * * 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." Q>). State v. Lombardi, 241 A.2d 625, 627 (R.I. 1968) ("we are not persuaded that the legislature is powerless to prohibit individuals from pursuing a course of conduct which could conceivably result in their becoming public charges." Q>).
Indoor public cigar smoking regulations, justified by studies on the dangers to others of second-hand smoke. See Beatie v. City of New York, 123 F.3d 707 (2d Cir. 1997) ("[N]o reasonable jury could fail to find that there was a conceivable basis upon which the City Council might believe that second-hand cigar smoke could be harmful to nonsmokers. Consequently, placing limits on cigar smoking is rationally related to the government's legitimate interest in protecting the health of its citizens." Q>).
Jaywalking laws, justified as protecting the general public from the hazards of pedestrians unexpectedly crossing busy streets. See Columbus v. Truax, 7 Ohio App.3d 49 (Ohio App. 1983) ("the city's vigorous efforts to stop jaywalking * * * protects motorists and pedestrians from the hazard presented by pedestrians crossing busy thoroughfares unexpectedly." Q>), which, however, overturned an ordinance prohibiting walking on the left side of a crosswalk, saying "If such an ordinance contributes to the public health, safety, morals or general welfare of Columbus, the city could reasonably argue that virtually any ordinance it adopts that controls the activities of its citizens is a constitutional enactment." Q>
Automobile seat belt laws, justified as helping the driver maintain control of his vehicle, thereby protecting the public, and protecting the driver from possible well-documented severe injuries requiring state resources. See State v. Batsch, 44 Ohio App.3d 81 (Ohio App. 1988) ("It not only saves lives, but it promotes the welfare of its citizens since the results of death or severe injuries often lead to the state's providing long-term care at taxpayers' expense to those injured. In addition, the wearing of a seat belt secures a driver in his seat making it easier for him to retain control of his motor vehicle and thus reducing the chances that sudden emergencies on the road may cause him to lose control of his vehicle and collide with other vehicles." Q>); State v. Kohrig, 498 N.E.2d 1158, 113 Ill. 2d 384, 101 Ill. Dec. 650 (Ill. 1986) ("The legislative debates clearly indicate that the legislators believed that safety-belt use would protect persons other than the belt wearers by helping drivers to maintain control of their vehicles, and that the law would promote that economic welfare of the State by reducing the public and private costs associated with serious injuries and deaths caused by automobile accidents." Q>); Richards v. Texas, 743 S.W.2d 747 (Tex. 1987) ("In the present case, there is evidence that the Texas seat belt law serves the public safety and welfare by enhancing a driver's ability to maintain control of his vehicle, and by reducing injuries not only to himself, but also to others, all of which directly affects the state's economic welfare." Q>).
BASE jumping (parachuting off Buildings, Antennas, Spans, and Earth) regulations, justified as removing the risk to those below. See United States v. Albers, 226 F.3d 989 (9th Cir. 2000) ("The safety threat implicated in BASE jumping is most often the potential harm to the jumper due to the fatalities and injuries characterizing the extreme sport. We do not, however, discount the safety risks of BASE jumping posed to members of the public, particularly in areas where people are likely to congregate * * *. We therefore affirm the district court's determination that BASE jumping can create a risk of harm to the public." Q>).
There is no comparable justification for the situation of a barefooted patron using the Library. Neinast's going barefoot had no impact at all on anybody else. The Library admits that Neinast's mode of dress did not disrupt Library operations in any way (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, pg. 2; Jt. Apx. ref. 44). The government simply has no interest in whether Neinast stubs his toe or not. Even the speculation of a severe impact upon Neinast, that is, catching AIDS, relied upon factually incorrect conjecture.
Even the case cited by the District Court, Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) ("Throughout our history the several states have exercised their police powers to protect the health and safety of their citizens." Q>) does not stand for the proposition that the government may protect a citizen from himself or herself, since it, too, was examining regulations imposed on parties to protect, not themselves, but others. The governmental interest in the present case turns out to be, not only not substantial, but not even legitimate. To accept this interest as legitimate requires a broad expansion in the power of government far beyond anything currently allowed. As the now-vindicated Justice Brandeis put it in Olmstead v. United States, 277 U. S. 438, 487 (1928) (dissenting): "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. * * * The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Q>
Thus, the Library's shoe policy can survive neither intermediate nor rational basis scrutiny. Regardless of the level of scrutiny, Neinast's actions are beyond the government's legitimate interest in protecting others. The District Court erred by ruling otherwise.
The Library also claimed an interest in protecting the fiscal integrity of the Library, asserting that it would protect them against lawsuits from barefooted patrons injuring themselves. This claim was demolished in the Plaintiff's Motion and Memo. Contra, pp. 8-13. Under Ohio Law, patrons are licensees, for whom the duty of care is "to refrain from wanton and willful conduct" Q> E9> that might injure the licensee, Siglow v. Smart, 43 Ohio App.3d 55, 539 N.E.2d 636 (Ohio App.1987), and, even assuming some unacknowledged danger to a barefooted patron, a "plaintiff who reasonably chooses to proceed in the face of a known risk is deemed to have relieved the defendant of any duty to protect him" Q>. 539 N.E.2d, at 640. The Library's duty of care simply does not extend to Neinast's actions. In addition, patrons are responsible for any inherent risks of an activity, Brinkman v. Ross, 68 Ohio St.3d 82 (Ohio 1992), and, even more importantly, the Library's insurance policy would cover any hypothetical injury, resulting in no fiscal impact at all.
These errors of law by the District Court also demand that Summary Judgment for the Library in regards to Neinast's First and Second Causes of Action be reversed and remanded. As a matter of law, the Library's shoe policy does not serve any legitimate governmental interest, and cannot survive even the most lax scrutiny. Summary Judgment for Neinast should be additionally be ordered.
The District Court erred by ruling that Neinast had no due process claim, and that only administrative rulemaking was implicated. This totally ignores the fact that Neinast was served with a one-day eviction, in contravention to the Eviction Procedure. Serving evictions is the essence of administrative adjudication. The Library's Eviction Procedure clearly states that the penalty for using the Library facilities without shoes is to request that the offender leave until the problem is corrected, and to then allow the patron to return (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 93; Jt. Apx. ref. 45). The Library has pointed to no language that says otherwise, yet a full one-day eviction was issued. This action by Defendants Black and Johnson also has a chilling effect on Neinast's First Amendment right to receive speech, since he has no way of knowing what penalty might be assessed for any further violations of the Library's unconstitutional shoe policy. If they arbitrarily serve one-day evictions, might they not just as arbitrarily cancel his Library membership? In her memo to Mr. Black, Ms. Chris Taylor stated that it was explained to Neinast that in serving the eviction, "the spirit of the procedure was progressive." (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, Attachment A, pg. 1; Jt. Apx. ref. 46.) This sort of unbridled discretion cannot satisfy procedural due process, and most certainly cannot be allowed to arbitrarily deny First Amendment rights.
Beyond that, the Executive Director of the Library, Mr. Black, clearly does not have the power to create the shoe policy, nor to enforce it. The Board of Trustees has enacted no regulation requiring shoes in its facilities.10 Furthermore, the Board has not authorized the Executive Director to promulgate patron regulations, only to "determine internal policies and procedures" and matters dealing with the operation of the Library. A Patron Regulation masquerading as an Eviction Procedure is not an "internal" policy or procedure. State law also clearly puts the power of making and publishing rules in the hands of the Board of Trustees, and grants them no authority to delegate that responsibility.11 Under Ohio Law, any delegation of powers from the legislature requires standards within the legislation to limit unbridled discretion, unless such standards would be impracticable. Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271 (Ohio 1937). Neither the enabling statute nor the Patron Regulations provide standards that allow for the imposition of a dress code. In addition, within the language of O.R.C. § 3375.40(H), the state has not granted the Library the police power to guard the public health and safety regarding the wearing of shoes any more than it has granted the Library the police power of eminent domain. Eighth & Walnut Corp. v. Public Library, 57 Ohio App.2d 137, 385 N.E.2d 1324 (Ohio App. 1977). It is the State's Health Departments that have been granted this aspect of the police power (O.R.C. § 3709.21: "The board of health of a general health district may make such orders and regulations as are necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances * * *"); they see no danger, and they are the experts. The Library's shoe policy has no basis in state law.
Neinast originally filed this complaint in state court, so that the state court could grant his prayer for declaratory and injunctive relief that the Library's shoe policy did not exist under state law, and was being wrongly enforced. The Library removed the action to Federal District Court, which had pendent jurisdiction over the state law claims via 28 U.S.C. § 1441(c). The Library then claimed that Neinast had thereby failed to state a claim. The Supreme Court does not look favorably upon state actors removing cases to federal court and then claiming that the federal court has no power to hear the state claims. Lapides v. Board of Regents of the University System of Georgia, No. 01-298, 535 U.S. ___ (2002).
The District Court failed to consider any of the state law claims. Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), directly addresses a parallel situation. Spruytte was a prisoner in a Michigan jail. Under the Michigan administrative code, he had a liberty/property interest in receiving books that did not threaten the security of the institution. However, a dictionary sent to him by his mother was confiscated, as it did not comport with a Department of Corrections Policy Directive that required all books come directly from the publisher. The Department of Corrections Policy Directive was found to be without legal effect under Michigan law since it was not created pursuant to the requirements for promulgation of an agency rule. The Spruytte court ruled that he had a due process cause of action for the enforcement of this null and void rule.
Neinast has a liberty/property interest in using the Library to receive speech. This interest is provided by the First Amendment right to receive speech, and equivalent guarantees under the Ohio Constitution. It is also provided by the Ohio library statutes (O.R.C. Chap. 3375) that, as implemented, is reflected in the Library's Mission Statement to "ensur[e] access to information." (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, Attachment G; Jt. Apx. ref. 48). The Eviction Procedure regarding shoes is, similar to Spruytte, without legal effect, since it was promulgated by Mr. Black without any authority to do so. It is not a consequence of the Board-approved Patron Regulations. It is not an "internal procedure", since it applies not to library employees, but to patrons, and since it is not a procedure, but a rule with penalties. In addition, Neinast proved that there was no adequate remedy under state law. The Library is not an administrative agency subject to the publishing and reviewing procedures under O.R.C. Chap. 119. In addition, Mr. Black precluded any further correspondence with Neinast. By both creating and enforcing the shoe policy without authority to do so, Mr. Black's actions were ultra vires, and did not provide Neinast with due process.
The District Court erred as a matter of law by not recognizing the judicial nature of the full one-day eviction (and its chilling First Amendment effect) that was capriciously issued by Library personnel, and that this eviction violated procedural due process. Summary Judgment on Neinast's Third Cause of Action should be reversed. There being no facts in dispute on the eviction, Summary Judgment for Neinast should instead be ordered.
For the reasons set forth herein, Plaintiff-Appellant urges this Court to reverse the District Court's grant of Summary Judgment to the Library. Plaintiff-Appellant further urges this Court to order the District Court to grant Plaintiff-Appellant's Motion for Summary Judgment. If this Court does not so order, Plaintiff-Appellant instead prays that the case be remanded to the District Court so it may proceed to trial.
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
I certify that this brief uses New Times Roman proportionately spaced type in Font Size 14, and contains 10,502 words. The words were counted using the UNIX wc program.
I hereby certify that a copy of the foregoing was served, by regular U.S. mail, upon Philomena M. Dane and Johnathan E. Sullivan, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this 7th day of June, 2002.
In addition to those parts of the record required under 6 Cir. R. 30(f), Plaintiff-Appellant designates the following additional items for the Joint Appendix:
|11||Defendants' Motion for Summary Judgment, Exhibit A, Attachment 1 (Library Organization Policy)||All (1 page)|
|11||Defendants' Motion for Summary Judgment, Exhibit A, Attachment 3 (December 14, 2000 letter from David Swaddling to Robert Neinast)||All (1 page)|
|11||Defendants' Motion for Summary Judgment, Exhibit A, Attachment 4 (February 12, 2001 letter from Larry Black to Robert Neinast, with enclosure by Jeffrey Glasgow)||All (3 pages)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment||Pages 16-17, 21-25 (7 pages)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1 (Robert Neinast Affidavit)||All (7 pages)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1, Attachment A (Letter from Ohio Department of Health)||All (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1, Attachment B (Letter from Franklin County District Board of Health)||All (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1, Attachment C (Letter from Columbus Health Department)||All (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1, Attachment G (Library Mission Statement)||All (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1, Attachment J (March 5, 2001 letter from Robert Neinast to Larry Black)||All (2 pages)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 1, Attachment K (March 12, 2001 letter from Larry Black to Robert Neinast)||All (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 4 (Morgan Condo Affidavit)||All (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 6 (Defendants' Responses to Plaintiff's First Set of Interrogatories)||Page 2 (1 page)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 6 (Defendants' Responses to Plaintiff's First Set of Interrogatories), Attachment A (March 2, 2001 memo from Chris Taylor to Larry Black; Eviction Notice for Robert Neinast)||All (2 pages)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 10 (1 Annals of Congress 759-760 (Gales & Seaton ed. 1834))||All (2 pages)|
|13||Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment, Exhibit 11 ("Footloose in San Francisco", San Francisco Chronicle)||All (1 page)|
|14||Defendants' Reply in Support of Motion for Summary Judgment and Memorandum Contra Plaintiff's Motion for Summary Judgment, Appendix||Pages 14, 27, 80, 82, 93-95, 97, 99-102, 112, 158 (14 pages)|
|--||Transcript of Oral Argument||Page 7 (1 page)|
1. Since the briefing schedule contains no provision for a "proof" brief, each reference to the Joint Appendix contains a "Reference Number." To assist the Court in finding the referenced items, the Joint Appendix contains, immediately following, and part of, the Table of Contents, a Cross-Reference Table, providing a linkage between the references in the briefs and the Joint Appendix page numbers. [Back]
2. Along with Multnomah County Public Library v. United States, No. 01-1322. This was heard by a special 3-Judge panel which found the Child Internet Protection Act unconstitutional. [Back]
3. The District Court erred by stating that the Kreimer Court upheld a shoe rule. That regulation was never before the Court. [Back]
4. As pointed out in Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment (R. 13; Pla. Motion and Memo. Contra, pg. 17; Jt. Apx. ref. 29), referring to Neinast's affidavit (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 4, ¶ 10; Jt. Apx. ref. 30) and acknowledged in the District Court's Opinion (R. 18; Opinion and Order, pg. 5; Jt. Apx. ref 31), a barefooted patron would be able to feel the wet spot on the floor, and thus be more likely than a shod person to avoid slipping on it. [Back]
5. In the January 23, 2001 incident in which Neinast was evicted from the Main Library, he was in fact sitting in a chair when the guard approached and informed him that he would have to leave. (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 6, ¶ 15; Jt. Apx. ref. 39.) [Back]
6. The debate was over whether freedom of assembly was trivially included within freedom of speech, and thereby did not need to be included. [Back]
7. Specifically, whether "a man should have the right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper" was considered similarly trivial and unnecessary in a Bill of Rights. [Back]
8. The District Court clearly lost its way in its discussion of Jackson v. Dorrier. The school in question was simply not a public forum for First Amendment purposes (R. 18; Opinion and Order, p. 11; Jt. Apx. ref. 43). [Back]
9. Not only that, but the Jackson case preceded the Kelley assumption of the right of personal appearance, and the Jackson case did not have the benefit of considering the House debate on the Bill of Rights. [Back]
10. The only patron regulations that exist prohibit:
Smoking.(R. 14; Def. Memo. Contra and Reply, Appendix, pg. 82; Jt. Apx. ref. 47). [Back]
Loud or abusive language
Action which disrupts or disturbs others.
Making harassing phone calls to staff.
11. O.R.C. § 3375.40 Powers of boards of library trustees:
Each board of library trustees appointed pursuant to sections 3375.06, 3375.10, 3375.12, 3375.15, 3375.22, and 3375.30 of the Revised Code may:
* * *
(H) 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; [Back]