I. INTRODUCTION

Defendants' Motion for Summary Judgment demonstrates that the Library is authorized to enact a shoe requirement pursuant to O.R.C. § 3375.40(H), that res judicata bars Neinast's claims, and that Defendant Losinski has qualified immunity from this suit. In his response, Neinast chose not to address the key issue as to whether the Library's authority to establish rules for the "proper operation and management" of the Library includes the ability to require shoes.¹  In fact, throughout most of his response, Neinast claims that the Library has cited no statutory provision granting it authority. He is wrong. Ohio Revised Code § 3375.40(H) is the clear source of its power to enact rules requiring its patrons to wear shoes.

The remainder of Neinast's response suggests that the legislature must specifically state that the Library has the authority to require shoes before such a power can be vested in the Library. The case law, however, does not require the legislature to be so explicit and recognizes that requiring such precision would render the legislative task impossible.

Because Neinast cannot point to any reason why the shoe requirement is not within the "proper operation and management" of the Library, Defendants are entitled to summary judgment and Neinast's claims must fail.

II. LAW AND ARGUMENT

A. O.R.C. § 3375.40(H) Grants The Library The Power To Adopt A Rule Requiring Its Patrons To Wear Shoes.

Neinast begins by misstating the Library's argument and contends that its rule need only be reasonable without regard to any grant of authority. Brief, at 3. The Library, however, recognizes that the legislature must vest it with the authority to enact the rule and that, in addition, the rule must be reasonable and not in clear conflict with the statutory intent of the legislation governing the subject matter. As the Library has noted, O.R.C. § 3375.40 gives it authority to enact rules for the "proper operation and management" of the Library. Ohio Rev. Code § 3375.40(H). Accordingly, the Library has pointed to the source of its authority and does not rest its argument solely on whether the rule requiring shoes is reasonable.² 

Neinast bases his remaining arguments on his allegations that the Defendants' cases are inapplicable and that D.A.B.E., Inc., v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 773 N.E.2d 536 (2002), is controlling. Defendants respectfully submit that each case should be considered in light of its unique facts and that all the cases weigh in favor of the Library's authority to require shoes.

In D.A.B.E., for instance, Neinast's principle case, the county board attempted to enact a broad smoking ban in all enclosed, indoor areas throughout the county, which the court rejected because the board did not have "unfettered authority" to promulgate any health regulation deemed necessary. D.A.B.E., Inc., at 251, 259, 773 N.E.2d at 539, 546. Here, pursuant to the authority granted to it by the legislature, the Library is only requiring its patrons to wear shoes while in the Library and nowhere else. The Library is simply administering policy the legislature already established throughout O.R.C. § 3375.40; that is, the policy to protect public safety and funds. The Library does not, as Neinast suggests, deem that it has the power to promulgate any regulation deemed necessary. The Library only contends that it has the power to promulgate rules for the "proper operation and management" of the Library, such as the shoe requirement.³ 

Neinast goes on to claim that the Library's cases as distinguishable because they apply rules regarding administrative agencies. Brief, at 4. Interestingly, so does Neinast's chief case, D.A.B.E., at 259, 773 N.E.2d at 545-46. Analogizing the Library to agencies is proper given that, like administrative agencies, the legislature must grant the Library its powers. See id.

Neinast next states that Buckeye Power and Woodbridge are distinguishable because in those cases, the grant of power was clear.⁴  Brief, at 5. In this case, he says, the grant of power is what is questioned and therefore, the Court should apply the presumption against the grant. Brief, at 5. The logical progression of Neinast's argument is that in any case where a plaintiff questions the scope or grant of authority, then the grant must be unclear and the court should apply the presumption against the grant. Under Neinast's argument, O.R.C. § 3375.40(H) would not grant any power because it is not specific and therefore, the presumption against a grant of power would apply to any challenge, rendering O.R.C. § 3375.40(H) meaningless. That indeed would improperly make the Library "impotent and unable to achieve the ends for which it was created." Matz v. The J.L. Curtis Cartage Co., 132 Ohio St. 271, 286, 7 N.E.2d 220, 227 (1937). The legislature could not have intended such a result.

In his attempt to distinguish Matz, Neinast argues that the Library does not have police powers. Brief, at 7. The Library, however, never claimed to have police powers, but rather, it has claimed and proven that it has the power to enact a simple requirement that its patrons wear shoes within the Library. Matz, in any event, did not limit the necessary flexibility and practicality of legislation to police power regulations. Id. at 281, 7 N.E.2d at 225. Instead, the court noted that there "are many instances where it is impossible or impracticable to lay down criteria or standards without destroying flexibility necessary to enable the administrative officers to carry out the legislative will; especially may such a contingency arise when the discretion relates to police regulations." Id. (emphasis added). If Neinast's arguments were to prevail, O.R.C. § 3375.40(H) would confer absolutely not authority on the Library because it does not contain exact standards and areas within which the Library can establish rules. That certainly cannot be the legislature's intended result.

Neinast also tries to distinguish Weber v. Bd. of Health, Butler Cty., 148 Ohio St. 389, 74 N.E.2d 331 (1947), by stating that the Library can point to (1) no expressed legislative objective that the shoe requirement accomplishes or (2) statutory provision authorizing the Library to require shoes. Brief, at 5-6. To the contrary, the Library has pointed to numerous legislative objectives that the rules accomplishes — including the protection of patrons and public and library funds. And although Neinast chooses to ignore it, the Library cites O.R.C. § 3375.40(H) as the statutory provision that bestows upon it the power to require shoes.

Neinast then turns to Mathis v. Cleveland Public Library, 9 Ohio St.3d 199, 459 N.E.2d 877 (1984). Brief, at 7. Mathis did indeed, as Neinast notes, hold that libraries are subject to lawsuits for their negligence. Id. But the Library does not, as Neinast suggests, contend that Mathis gives it the authority to enact a shoe requirement. The Library has instead repeatedly explained that it derives such authority from its power to establish rules for the "proper operation and management" of the Library. O.R.C. § 3375.40(H).

Neinast goes on to cite the dissent in Mathis and claims that since the Library could not spend money for insurance pursuant to the "make and publish rules for the proper operation and management" provision, then that provision must not authorize the establishment of a rule requiring shoes. Brief, at 8. This analogy is nonsensical. Buying insurance is not akin to making a rule. The Library could not buy insurance by establishing a rule and that is why O.R.C. § 3375.40(H) was of no assistance to libraries that wanted to spend money for insurance before O.R.C. § 2744.08(A)(1) was enacted. Furthermore, buying insurance is not part of the daily operation of the Library, but running the Library and regulating patrons' daily conduct is.

Finally, Neinast contends that "proper" means that the Library's rules must be specific to operating a library as a library. Brief, at 10. Neinast cannot cite any authority for this proposition. That is because if Neinast were correct, the Library could not promulgate rules prohibiting bathing, shaving, washing clothes, sleeping, loitering, leaving children under the age of 7 unattended on the premises, or many of the other rules that the Library has established for the "proper operation and management" of the Library. Neinast cannot honestly contend that the Library is not authorized to prohibit such behaviors simply because they do not relate to operating a library as a library.⁵ 

Because Defendants have shown that O.R.C. § 3375.40(H) authorizes the Library to require its patrons to wear shoes, Neinast's claims must fail as a matter of law and Defendants are entitled to summary judgment.

B. Neinast's Claims Are Barred By Res Judicata and Collateral Estoppel.

In response to the Library's res judicata and collateral estoppel arguments, Neinast contends that the authority of the Library Board to establish a shoe requirement could not have been determined in the earlier federal case because the issue was not ripe. Brief, at 10-12. That is incorrect. To reach the issue of whether the Board could delegate its rulemaking authority to the Director, the court would necessarily have to first conclude that the Board itself had the authority to establish a shoe requirement; only then could such authority be delegated. The Board certainly could not delegate a power it did not possess. Neinast recognized this fact when he asked the federal court to declare that the Board had no authority to establish a shoe requirement.⁶  The same issue of the Boards authority was, therefore, ripe during the federal proceedings as a necessary precursor to the issue regarding the Board's authority to delegate. Neinast's argument concerning the res judicata and collateral estoppel issues is consequently deficient because there has been no change in the facts that raises a new material issue. Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201 (1983).

CONCLUSION

In conclusion, Defendants are entitled to judgment as a matter of law because the Board is empowered by statute to establish rules requiring patrons to wear shoes and because Neinast's claims have already been raised and resolved in another action. For all these reasons, Neinast can provide no evidence that would entitle him to relief. As a result, Defendants respectfully request that this Court grant summary judgment.

I hereby certify that a true and accurate copy of the foregoing Reply In Support Of Defendants' Motion For Summary Judgment was served by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Plaintiff, 8617 Ashford Lane, Pickerington, Ohio 43147, this 16^th day of May, 2005.

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