COURT OF COMMON PLEAS
FRANKLIN COUNTY, OH


ROBERT 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 Frye



REPLY OF PLAINTIFF ROBERT NEINAST TO DEFENDANTS BOARD OF TRUSTEES OF THE COLUMBUS METROPOLITAN LIBRARY AND PATRICK LOSINSKI'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT


I. Introduction

The essence of this case is the interpretation of O.R.C. § 3375.40(H), which says that the Board of Trustees of a library may "[m]ake and publish rules for the proper operation and management" of the library. The Library has argued for a broad, open-ended interpretation that allows for health and safety regulations like the barefoot rule; Neinast has demonstrated that the legislative intent does not encompass such regulations.

Because the Library can show no legitimate granting of authority for its barefoot rule, Plaintiff is entitled to summary judgment.

II. Law & Argument

A. The Library Board of Trustees Has Not Been Granted the Power to Adopt the Barefoot Rule

The Library is being deliberately obfuscatory when it says that "Neinast claims that the Library has cited no statutory provision granting it authority" and repeatedly points to O.R.C. § 3375.40(H). (Def. Reply, at 1). The real issue (and Neinast's claim) is that the language of 3375.40(H) does not encompass a barefoot rule and that the Library is unlawfully setting policy by promulgating it. There is no language in the entire Ohio Revised Code showing a legislative intent that libraries be allowed to make health and safety regulations, and the Library has pointed to none. The Library makes no attempt to define what the "proper operation and management" of a library encompasses,1  and it makes no attempt to guide this Court in interpreting or limiting that language.

For the phrase "proper operation and management" to mean anything and to give each word its import, any rules must be more than for the "operation and management" of the Library; they must be for the "proper operation and management" of the Library. The Library rejects the contention that the word "proper" means that the rules must pertain to operating a library as a library,2  claiming that such an interpretation would prevent the Library from making rules prohibiting, among others, bathing, shaving, washing clothes, and sleeping. The Library is wrong. A patron who is bathing or shaving is not using the library as a library; a patron who is washing clothes is not using the library as a library; the patron who is sleeping is not using the library as a library. On the other hand, a barefooted patron is using the library as a library. The barefooted patron sitting in a chair reading a book is using the library as a library, just as a patron wearing flip-flops is. The barefooted patron walking from one section of the library to another to find a book is using the library as a library, just as a patron wearing high-heels is (and the barefooted patron crossing a tile floor will be noticeably quieter than the high-heeled patron, and thereby less disturbing of other patrons). The only distinction between the two different patrons is their choice of footwear.

It is quite clear that the legislature has not granted the Library the power to independently make health and safety regulations.3  This can be seen by examining the Library's only other health and safety regulation in their Code of Conduct. The Library prohibits smoking. However, in O.R.C. § 3791.031(B), the Library (and any other governmental entity) has explicitly been granted the power to make such a health and safety regulation by the legislature ("For the purpose of separating persons who smoke from persons who do not smoke for the comfort and health of persons not smoking, in every place of public assembly4  there shall be an area where smoking is not permitted, which shall be designated a no smoking area . . . and if the place is owned by a political subdivision, its legislative authority shall designate an officer who shall designate the area."Q>). If the language "proper operation and management" already included the power to make health and safety regulations, as the Library claims, then there would have been no need for O.R.C. § 3791.031(B). The intent of the legislature is quite clear: health and safety regulations in public buildings need to be authorized by legislative policy. The legislature was able to "adopt[] specific standards for guidance"Q> (D.A.B.E., Inc., v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 257 (2002)) regarding the health-and-safety smoking regulation; when the General Assembly wants a governmental entity to have the latitude to create and enforce a health and safety regulation, it says so. The Library has exceeded its authority.

The Library is confused about Neinast's purpose in comparing rulemaking regarding the (lack of) shoe requirements of other institutions. Those comparisons serve two purposes in helping to interpret O.R.C. § 3375.40(H): (1) since the Ohio Revised Code is read in pari materia, examining other rulemaking statutes and whether their entities have shoe rules provides insight into the legislative intent for the Library’s rulemaking; (2) examining other institutions provides insight into interpreting what a "proper" restriction on using such institutions might be.

The Library unsuccessfully attempts to minimize the holdings of D.A.B.E.. Nonetheless, D.A.B.E. holds that "[i]n construing such grant of power, particularly administrative power through and by a legislative body, the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it."Q> Id. at 259. Nowhere is there any hint that the grant of power for the "proper operation and management" of a library includes the power to create health and safety regulations, or to claim a fiscal impact based upon health and safety fears. The Library asserts that it is merely "administering policy the legislature already established throughout O.R.C. § 3375.40; that is, the policy to protect public safety and funds"Q> (Def. Reply at 3), yet there is no mention of the public safety in the entire Chapter, let alone that Section. And Chapter 3375 is quite specific on how funds are to be managed; nowhere does it mention fiscal fear for incidents already covered by liability insurance.

Again, the Library is a creature of statute, and "has only such powers as are provided in the statute, and such other powers as are reasonably necessary to the accomplishment of the purposes of the board."Q> (1989 Op. Att'y Gen. No. 89-031). They are only allowed to do those things explicitly allowed by statute (or allowed through an "implied power [that] is only incidental or ancillary to an express power"Q> (D.A.B.E., 96 Ohio St.3d at 259; emphasis added)).6  A barefoot regulation is not implied by "proper operation and management."

B. Res Judicata and Collateral Estoppel Do Not Prevent Neinast's Attack on the New Customer Code of Conduct

It is absolutely clear from the opinions of the federal courts that they never addressed, in the least, Neinast's claims about the authority of any entity to make a barefoot rule. The District Court expressly passed on the issue: "Plaintiff's remaining procedural argument is that the Board exceeded its statutory authority under O.R.C. § 3375.40, which is its authorizing statute. But this is a question of state law, and mere allegations of state law are not sufficient to state a claim under § 1983."Q> Neinast v. Bd. of Trustees, 190 F.Supp.2d 1040, 1047 (S.D.Ohio 2002), as did the Sixth Circuit Court of Appeals. Neinast v. Bd. of Trustees, 346 F.3d 585, 597 (6th Cir. 2003).

Since the Board did not create its Code of Conduct until August of 2004, the issue of whether they had the authority to create a barefoot rule was clearly not ripe throughout Neinast's first lawsuit. Assuming that "when two causes of action are brought and a journal entry disposes of one but does not dispose of or mention the other, the silence of the journal entry as to the second is considered as dismissing it, and such dismissal is res judicata"Q> (Victor Mortg. Co. v. Arnoff, 67 Ohio Law Abs. 459, 120 N.E.2d 615, syllabus at 3, (Cuyahoga C.P. 1952)), the Library claims that, in order to have "decided" whether the Board of Trustees had delegated authority to the Director, the Courts must first have "decided" that the Board had the authority to make such a rule in the first place. This does not necessarily follow, since the Courts could decide the issue of delegation without first deciding the issue of the Board's authority.7  In addition, such dismissal is only considered a prima facie adjudication that recovery on other causes is unavailable. See Lehmann v. Har-Con Corp., 39 S.W. 3d 191, 197 (Tex. 2001). Prima facie presumptions are rebuttable; in the instant case the language of the federal court opinions make it clear that there was no determination on the merits.

Regardless, "the doctrine of res 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,"Q> 46 American Jurisprudence 2d 569-570, Judgments, Section 402, quoted with approval in Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 202 (1983). Since the Federal Courts clearly passed over this issue, justice requires an actual ruling and res judicata ought not be invoked. This is further supported by Kelly v. Georgia-Pacific Corp., 46 Ohio St.3d 134, 545 N.E.2d 1244 (1989), a similar case in that it was heard in federal court, and that federal court did not address any state law issues:

This same lack of fairness may nevertheless give rise to a state claim under identical facts. Thus, the decision on the federal claims will not result in issue preclusion in a subsequent state proceeding.

We therefore conclude that where a determination in a prior federal action was not essential to the judgment obtained therein, collateral estoppel will not foreclose consideration of the issue in a subsequent state proceeding involving a different claim for relief.Q>

In the instant case, there was no determination of state law issues in the prior federal action, so they could not have been essential to the judgment there.8  Neinast is not barred from challenging the Code of Conduct.

IV. Conclusion

For these reasons, the Library Board of Trustees has not been granted the power to make their barefoot regulation, and res judicata and collateral estoppel do not apply. Plaintiff Neinast should be granted summary judgment.



  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  ____  day of May, 2005.





Footnotes:

1. The Library is correct in noting that the issue of whether they can require hard hats is not before this Court. However, if applying their method of interpreting O.R.C. § 3375.40(H) also allows something as silly as a hard hat rule, then it can hardly capture the legislative intent. The same holds true for the other examples of high heels and flip-flops, which the Library could equally have banned claiming health and safety reasons, but has not. If the legislature wanted the Library to make such policy decisions, it would have explicitly (or even implicitly) said so. [Back]

2. The Library made no alternative suggestion on how to interpret this, or on how their rulemaking authority might be limited in any way. Without such a limiting construction, O.R.C § 3375.40(H) might well be a vague and unconstitutional delegation of legislative (as opposed to administrative) authority. [Back]

3. In Defendant's Reply brief, at 4, they say that they have never claimed that the Library has police powers. Yet, they also claim that the barefoot rule is a health and safety regulation. All health and safety regulations are promulgated under the police power of the state. See, e.g., 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>) [Back]

4. Division (A)(2) explicitly includes libraries as places of public assembly. [Back]

5. If no other governmental body has such a rule (and none does), it strongly suggests that such rules are not within the legislative intent. [Back]

6. In footnote 1 of Defendants' Reply brief, at 1, the Library misrepresents Neinast's argument by selectively quoting: "Neinast further asserts that 'a barefoot rule is not a necessary part of running a library.'"Q>) This was Neinast's response to the Library's claim in their Motion for Summary Judgment, at 10, that the Library was "the entity with more practical knowledge of what rules are necessary for the proper operation and management of the Library." Q>) (Emphasis added.) In their Reply brief, the Library goes on to say, "The Library does not maintain that the shoe requirement is necessary to running the Library."Q>) (Emphasis in original.) The Library needs to make up its mind as to whether its shoe rule is necessary or not. Regardless, the limitation on an implied power is that it must be (reasonably) necessary to make the express power effective. D.A.B.E., at 259. If the shoe requirement is not necessary to run the Library, as they now claim, then they clearly do not have the power to promulgate the rule. [Back]

7. As we well know, the Courts decided neither. If they had decided the issue of delegation, they would clearly have ruled in Neinast's favor, since O.R.C. § 121.22(H) requires that "[a] resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body." [Back]

8. The federal courts probably passed on Neinast’s state law claims because of ¶23 of the amended complaint in his first action, by which they interpreted his suit as a pure § 1983 action without state law claims. [Back]