I. INTRODUCTION

Defendants the Columbus Metropolitan Library and Patrick Losinski filed a Memorandum in Opposition to Plaintiff's Motion for Leave to File Amended Complaint arguing that Plaintiff's Motion should be denied because his proposed amended action is barred by res judicata and that he has not stated a claim upon which relief can be granted.

For the following reasons, these arguments are without merit, and Plaintiff's motion should be granted.

II. ARGUMENT

A. Res Judicata and Collateral Estoppel Do Not Bar Plaintiff's Amended Action

As the Library acknowledges in its Memorandum Contra, on August 26, 2004 the Board of Trustees enacted a Code of Conduct that includes a prohibition on using the Library when barefoot. As a result, Plaintiff Neinast filed a motion to amend his complaint to directly challenge the new Code of Conduct and to abandon any claims against the Eviction Procedure.

There are two relevant claims involved with this case. First, there is the claim that the Eviction Procedure, which was the only document containing a barefoot rule until August, 2004, was not authorized under state law because it was promulgated by the Executive Director of the Library and not the Board of Trustees. That Eviction Procedure was challenged under Neinast's previous lawsuit.¹  That Eviction Procedure was also re-challenged in the present action. Second, there is the claim that the legislative grant to the Board of Trustees to make rules for the "proper operation and management" of the Library does not extend to the enacting of a barefoot rule, and that the Code of Conduct is without effect in that area.

The Library's enactment of the barefoot rule in the Code of Conduct in August, 2004 has removed the res judicata infirmities, if any, in the present action, and Neinast seeks to amend the Complaint to reflect that change.

To prevail in asserting res judicata and collateral estoppel, the Library must prove "that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action." ^Q> Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201 (1983) (emphasis added). Goodson goes on to say, "where there has been a change in the facts since a prior decision, which either raises a new material issue, or which would have been relevant to the resolution of a material issue involved in the earlier action, neither the doctrine of res judicata nor the doctrine of collateral estoppel will bar litigation of that issue in a later action." ^Q> Id.

In the prior action, the Federal Court did not even reach any state law actions ("Neinast's claim turns upon a question of state law — namely, the amount of rulemaking authority the Board properly can delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983" ^Q>, Neinast v. Bd. of Trustees, 346 F.3d 585, 597 (6th Cir. 2003)). The present action, when amended, is not identical (challenge to powers of Board with duly enacted rule, not to delegation to Executive Director with rule promulgated by Director), was not directly determined (the Federal Court never even reached the Executive Director issue), and was not essential to the holding (no First Amendment or due process violations).² 

Since the barefoot rule in the Code of Conduct was enacted in 2004, Neinast could not possibly have litigated that issue in his previous lawsuit of 2001. See Lakewood Congregation of Jehovah's Witnesses, Inc. v. Lakewood, 20 Ohio App.3d 338. 338-9 (Cuyahoga 1984) ("In 1975, Lakewood Congregation again applied for a permit, which was denied and affirmed by way of summary judgment, on the ground of res judicata. This court reversed, stating that a new controversy existed since there was a new ordinance and because the traffic patterns, a major factor in the previous decision to deny a permit, may have changed." ^Q> (emphasis added)). In the referenced Lakewood decision, that earlier court stated: "[S]ince the instant case is based on an ordinance different from the one in the prior action, the trial court's granting of summary judgment based on collateral estoppel was error." ^Q> Lakewood Congregation of Jehovah's Witnesses, Inc. v. Lakewood, 1977 Ohio App. LEXIS 7275, *10 (Cuyahoga 1977). See also Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 S.E. 2d 255) (1998) ("[I]t is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid." ^Q>).

Res judicata is not a viable defense for the Library; the issues in the present action, when amended, were not ripe and could not be (and were not) properly determined in the previous action. The Motion for Leave to Amend the Complaint should be granted.

B. The Proposed Amended Complaint Makes a Claim for Which Relief May be Granted

The Library asserts that amending the Complaint to directly challenge the new Code of Conduct (and to decide whether the Board was granted the power to create the new barefoot rule) will not result in a judiciable controversy. It is not clear where their claim lies.

The Library makes the distinction between those actually impacted by the barefoot rule and those with "simply a practical interest," citing Driscoll v. Austintown Assoc., 42 Ohio St. 2d 263, 273 (1975). However, that distinction in Driscoll concerned which persons were required to be joined in any Declaratory action. In their other cited case, Westgate Shopping Village v. City of Toledo, 93 Ohio App. 3d 507 (Lucas 1994), the Westgate Shopping Center was allowed to seek a declaratory judgment even though the challenged zoning ordinance pertained to Franklin Park Mall. In the present action, Plaintiff Neinast is directly affected by the barefoot rule, as supposedly enacted under O.R.C. 3375.40(H).

The Library also appears to invoke res judicata again, claiming that the Federal Courts in the previous action held that he had no right to use the Library barefoot. Under res judicata, of course, due weight must be given to the factfinding of the previous courts. However, the Federal Courts did not find that Neinast had no right to use the Library. Those Courts found instead that, by denying Neinast the use of the Library while barefoot, his First, Ninth, and Fourteenth Amendment rights were not violated. No factfinding and no determination of any state law issues were made; again, the Courts never reached any state law issues. Neinast does have a legislatively-derived right to use the Library: The breadth of Ohio Revised Code Chapter 3375 shows a clear intent on the part of the legislature to make library services broadly available to the people of Ohio. And if the barefoot rule is invalid, as Neinast claims, then he has been denied that right.

The Declaratory Judgement Act says: "The provisions of [Chapter 2721] are remedial and shall be liberally construed and administered." It has been held that all of the following provide justiciability under the Declaratory Judgment Act:

• Threat of prosecution under a statute or ordinance. See Peltz v. South Euclid, 11 Ohio St.2d 128, 131 (1967) ("If plaintiff had acted, the ordinance would have been applied to his disadvantage. Thus, the record establishes the existence of an actual controversy 'between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" ^Q>). Neinast has been evicted from the Library, thus having the rule applied to his disadvantage.

• Questions on the authority of public bodies. See State, ex rel. Greater Cleveland Regional Transit Auth. v. Griffin, 62 Ohio App.3d 516, 519 (Cuyahoga 1991) ("The county prosecutor has created a clear and justiciable controversy regarding GCRTA's authority under R.C. 306.30 through 306.53 in this case." ^Q>)

• Affected third parties have standing. See Joseph Airport Toyota, Inc. v. City of Vandalia, 2002 Ohio App. LEXIS 843, *2 (Montgomery 2002) ("The issue in this case is whether owner of a parcel of real estate has standing to bring a declaratory judgment action challenging the constitutionality of a municipal ordinance that rezones an adjoining parcel of real property when the plaintiff alleges that the ordinance adversely affects the value of the real property adjacent to the parcel that has been rezoned. For the reasons that follow, we answer this narrow legal question in the affirmative." ^Q>). See also, Westlake, supra.

• The categories of regulations that may be construed are not exclusive. In Driscoll, supra, even though the language of O.R.C. § 2721.03 at that time did not include township resolutions, the Ohio Supreme Court ruled that it could be used to interpret a township ordinance, pointing to "R.C. 2721.03 to 2721.05, do not limit or restrict the exercise of the general powers conferred in R.C. 2721.02 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty." ^Q> O.R.C. § 2721.06.

Judicial construction of state statutes (in this case, O.R.C. § 3375.40(H)) is an archetypal use for the Declaratory Judgment Act. Freedom Road Found. v. Ohio Dept. of Liquor Control, 80 Ohio St.3d 202 (1997). "Any person" may use it to "have [the court] determine[] any question of construction" arising under a statute to "obtain a declaration of rights, status, or other legal relations thereunder". O.R.C. § 2721.03. Plaintiff Neinast is requesting that the statute be construed in order to have this Court determine whether the barefoot rule of the new Code of Conduct unjustly deprives him of the legislatively created right to use the Library. Given the examples above and the remedial nature of Chapter 2721, such a request is clearly judiciable.

Under the Library's definition of justiciability, no regulation enacted by them could ever be judicially challenged by those affected by it. Any challenger would have "simply a practical interest" in the regulation. No person would have a right to use the Library except as the Library granted it. Such an interpretation puts the Library outside the bounds of law, and it must be rejected.

Finally, the Library claims that amending the Complaint does nothing but "substitute one rule for another" (the Code of Conduct for the Eviction Procedure). As already shown, these are different legal issues: the Eviction Procedure was promulgated by the Executive Director³  under a claim of delegation; the Code of Conduct was enacted under O.R.C. § 3375.40(H), and was incapable of review until now.

III. CONCLUSION

For all these reasons, Plaintiff respectfully requests that this court grant his Motion for Leave to File an Amended Complaint.

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, postage prepaid 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  29th  day of September, 2004.

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