COURT OF COMMON PLEAS
FRANKLIN COUNTY, OH


ROBERT A. NEINAST
Plaintiff,
v.
BOARD OF TRUSTEES OF THE COLUMBUS METROPOLITAN LIBRARY, et. al
Defendants.

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Case No. 04 CVH 06-6341

Judge Miller



REPLY OF PLAINTIFF ROBERT NEINAST TO DEFENDANT COLUMBUS METROPOLITAN LIBRARY'S MEMORANDUM CONTRA TO MOTION FOR ORDER TO COMPEL DISCOVERY FILED SEPTEMBER 1, 2004


I. INTRODUCTION

Defendants the Columbus Metropolitan Library and Patrick Losinski filed a Memorandum Contra Motion for Order to Compel arguing that Plaintiff's Motion to Compel should be denied because his action is barred by res judicata, that he has not stated a claim upon which relief can be granted, and that the Interrogatories posed do not get to the intent of the legislature in enacting O.R.C. § 3375.40(H).

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 abandon any claims against the Eviction Procedure.

Under the doctrines of res judicata and collateral estoppel, "a subsequent action is barred if the following elements are demonstrated: (1) a final judgment or decree rendered on the merits by a court of competent jurisdiction; (2) concerning the same claim or cause of action as that now asserted; (3) between the same parties as are in the current action or their 'privies.'" Q> Stuller v. Price, 2003-Ohio-6826, 2003 Ohio App. LEXIS 6127 (Franklin 2003). Furthermore, "an absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion 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.

This clearly is not an identical issue. Plaintiff Neinast is now challenging the new Code of Conduct, which is a change of facts, and a new material issue. Since the rule was enacted in 2004, Neinast could not possibly have litigated it in his previous lawsuit of 2001. See also 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)).

Since Plaintiff Neinast's claims are not barred by res judicata and collateral estoppel, Discovery should proceed.

B. Plaintiff's Unamended Action Is Not Barred By Res Judicata and Collateral Estoppel

Even if this Court does not grant Plaintiff Neinast's Motion to File an Amended Complaint, this action as originally filed is not barred by res judicata and collateral estoppel. As defendants noted in their Memorandum Contra Motion for Order to Compel Discovery at 3, neither Judge Marbley nor the Sixth Circuit Court of Appeals addressed the state court issues in the original case. The original case, 01-CVH-04-3104, was filed in the Franklin County Court of Common Pleas precisely because it presented mixed questions of State and Federal law. Defendants removed the case to Federal Court, where only the Federal issues were adjudicated. Nonetheless, as noted by the Defendants, no claims were remanded back to this Court.

While "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit," Q> (Rogers v. Whitehall, 25 Ohio St. 3d 67, 69 (1986)) and a plaintiff is required "to present every ground for relief in the first action, or be forever barred from asserting it" Q> ( National Amusements, Inc., v. Springdale, 53 Ohio St. 3d 60, 62 (1990)), the present action as originally filed presents no new claims. Compare paragraphs 33, 35, and 36 in the Complaint of the original action (Attachment C of Defendants' Memorandum Contra) with paragraphs 24, 25, and 26 in the unamended Complaint of the present action. Also compare the requested remedies of paragraphs A, B, D, and E in the Complaint of the original action with paragraphs A, B, C, and D in the unamended Complaint of the present action. Plaintiff Neinast pled and argued these issues (the relevant pages of Neinast's "Plaintiff's Motion for Summary Judgment, and Memorandum in Opposition to Defendants' Motion for Summary Judgment" from the District Court are attached as Exhibit A; the relevant pages of Neinast's "Brief of Appellant" from the Sixth Circuit are attached as Exhibit B). If the original case had remained in this Court, this Court would have recognized and ruled upon these state law issues. Plaintiff simply wants those remaining claims heard and adjudicated.

Under the doctrine of res judicata, "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Q> Grava v. Parkman Twp., 73 Ohio St. 3d 379, 382 (1995) (emphasis added). However, the previous courts clearly made no ruling on the state law issues, so the final judgment regarding those issues is not "upon the merits." While it is true that "the silence of the journal entry as to the second [issue] is considered as dismissing it" Q> (Victor Mortg. Co. v. Arnoff, 120 N.E.2d 615, 617 (Cuyahoga C.C.P. 1952)), and "such judgment is prima facie an adjudication that he was not entitled to recover upon such other causes" Q> (Lehmann v. Har-Con Corp., 39 S.W. 3d 191, 197 (Tex. 2001)) (emphasis added), a prima facie circumstance is rebuttable. See, e.g., State v. Oglesby, 2003-Ohio-867, 2003 Ohio App. LEXIS 829 (Seneca 2003) (while "a speed in excess of the statutory speed limit is a prima facie unreasonable speed", it creates a "rebuttable presumption." Q>).

It is clear that the Federal Courts made no decision on the merits, since under Ohio law it is abundantly clear that the barefoot rule promulgated in the Eviction Procedure is contrary to law. The Library admits in its Memorandum Contra at 9 that the barefoot rule was promulgated by the previous Executive Director of the Library, Mr. Black, not by the Board of Trustees. This is contrary to O.R.C. § 121.22(H): "A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body."1  Mr. Black simply did not have the authority to adopt rules; only the Board is authorized to do so. See also American Federation of Employees v. Polta, 59 Ohio App.2d 283 (1977) (County Engineer had no power to make contract; only County Commissioners had that power); Wolf v. Cuyahoga Falls City School Dist. Bd. of Edn., 52 Ohio St.3d 222 (Ohio 1990) (Principal of school cannot enter into agreements with employees; only Board may do so).

"The doctrine of res judicata is . . . a rule of fundamental and substantial justice. . . . [R]es judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice." 46 American Jurisprudence 2d (1994) 786-787, Judgments, Section 522. Plaintiff Neinast has already been denied for over three years the use of the Library in his preferred mode of dress as they have enforced an invalid regulation against him. Fundamental fairness demands that the current suit not be barred, and that Discovery proceed.

C. The Present Action Makes a Claim for Which Relief May be Granted

Arguing that Plaintiff Neinast has not made a claim for which relief may be granted, the Library invokes res judicata again. While the Federal Courts did state that no constitutional right was violated, Mr. Neinast also has a state law statutory right to use the Library in any fashion allowed by the state legislature, and without being subjected to invalid rules based upon the Library's animus towards his style of dress. Mr. Neinast should not be forced to "just put on some shoes" if the law does not demand2  it. The Federal Courts made no findings regarding Plaintiff Neinast's state law legal interest in being allowed to use the Library. The Ohio Revised Code Chapter 3375, read as a whole, shows that the legislature intended to make library services broadly available to the people of Ohio. See, in particular, O.R.C. § 3375.82, regarding the administration of grants by the State Library Board: "All grants shall be made under rules [that] shall be designed to . . . [e]nsure every resident of Ohio access to essential public library services."

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 determined 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 determined the legal relation of the new Code of Conduct under that statute, as it affects his ability to use the Library.

As already stated, any person may ask for a declaratory judgment. If Plaintiff Neinast's action is not allowed to proceed, it takes just one other person who wishes to use the Library barefoot to file a similar action requesting judicial construction. Barring this suit advances neither judicial economy nor Library economy.

D. The Interrogatories Posed Will Lead to the Discovery of Admissible Evidence

This is a case regarding the statutory construction of the phrase "[m]ake and publish rules for the proper operation and management" of the Library.3  The Library, in its Memorandum Contra at 12, says:

Again, Mr. Neinast acknowledges that the issue in this case (if there is one) is the legislative intent behind O.R.C. § 3375.40(H), while simultaneously arguing that the legislative intent behind the statute can be determined by examining the actions and beliefs of those that the statute regulates. This contention is unsupported in both law and logic, and must be rejected. Q>

This is simply incorrect. O.R.C. § 1.49 specifically says: "If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters . . . [t]he administrative construction of the statute." In other words, the court may consider the construction of those that the statute regulates to help determine the legislative intent. See also Diechele v. Sandusky, 46 Ohio App.2d 4 (Erie 1974) ("The court should also consider the administrative construction by executive departments, bureaus, and administrative officials, of an ordinance to determine its legislative intent." Q>). The challenged Interrogatories are aimed at determining how the Library's administrators construe the statute by examining their interpretation of the statute's boundaries (particularly the word "proper"), and hence are without doubt reasonably calculated to lead to the discovery of admissible evidence.

III. CONCLUSION

For all these reasons, Plaintiff respectfully requests that this court grant his Motion for an Order to Compel Discovery.



  Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@worldnet.att.net


CERTIFICATE OF SERVICE

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  24th  day of September, 2004.





Footnotes:

1. While O.R.C. § 121.22 also contains a remedy for which the statute of limitations has run out, that does not make the barefoot rule any less invalid. [Back]

2. In a note to the Franklin County Prosecutor's Office, Mr. Black asked for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." Regardless of their personal feelings on the appropriateness of certain styles of dress, all government officials are required to follow the law, rather than use the law to legitimize those feelings. [Back]

3. In footnote 4 of their Memorandum Contra at 11, the Library stresses that the Federal Courts ruled that "the barefoot rule is narrowly tailored to serve a significant governmental interest" and that Plaintiff Neinast cannot relitigate that finding. Such a finding is irrelevant to the present action, which seeks to determine whether the legislature has granted to the Library the power to make a barefoot rule. If that power has not been granted, it does not matter whether the rule satisfies a governmental interest or not. For instance, in D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health, 96 Ohio St.3d 250 (2002), the Ohio Supreme Court ruled that local County Boards of Health have not been granted the power by the legislature to promulgate smoking regulations in public buildings, even though regulating smoking in public buildings is clearly a legitimate governmental interest under the police power. [Back]