Transcript

JUDGE PETREE: 668. Neinast versus Columbus Board of Trustees of the Columbus Metropolitan Library. Mr. Neinast?

NEINAST: Yes.

JUDGE PETREE: You may proceed. You have fifteen minutes.

NEINAST: I'd like to reserve three minutes, please.

JUDGE PETREE: OK.

NEINAST: May it please the court. My name is Robert Neinast. I am appearing pro se. The issue presented here is whether a library board of trustees has been authorized by the legilature to make police power health and safety regulations. In particular, has it been authorized to require that its patrons wear shoes, supposed to protect those patrons from their own bad judgment.

I'd like to begin by mentioning two items from the record in the federal case. These are both incident reports. In one of them, a little barefoot girl had a door open in front of her, and catch her toenail and tear it slightly. The EMTs who responded called the injury, "not serious." In another one, a woman wearing either shoes or sandals also got her foot caught underneath a door, an opening door. Her foot was cut and possibly even broken. Now, when looking for a rational basis for rules, the library could, either, using this, these injury reports, could ban wearing shoes, or ban not wearing shoes.

Or, as I cited in my Reply Brief, there are a number of cases where women wearing high heels have gotten their heels caught in various things, and they have been injured. Once again, the Library could use that as a rational basis to ban high heels in the Library.

And this brings us to the core of the case. How is the Library to decide what to ban? What guidelines or standards are they to use? And what is the legislative intent in this area?

First of all, it is axiomatic that the legislative power belongs only to the legislature, and that any administrative rulemaking needs guidelines or standards. And in fact, it goes further than that. There must be a clearly stated policy statement in order in order to have rulemaking, and intelligible principals. Without that, it's a usurpation of the legislative power. This policy statement is not optional. As Burger Brewing said, even without standards, there must be a discernible public policy declaration. D.A.B.E. mentions that all rulemakers can do is develop and administer policy already established by the General Assembly. This is required. Furthermore, they go on to say that in case of doubt as to a grant of power, the presumption is against such a grant.

JUDGE TRAVIS: Mr. Neinast.

NEINAST: Yes.

JUDGE TRAVIS: If I may. Did not the federal court, the United States District Court, in your lawsuit there, make a determination, with the same parties involved, you and the Library board and so forth, make a determination that the regulation or rule or whatever you want to call it was reasonable, was rational, and was within the power of the Library?

NEINAST: Um.

JUDGE TRAVIS: And if . . . I just ask you that question first. Was not that the ruling?

NEINAST: Um. Pretty close to it. All they needed to rule, though, for . . . for the First Amendment claims, and Fourteenth Amendment claims was whether the rule had a rational basis. Okay?

JUDGE TRAVIS: But, but my question is, did they make that ruling?

NEINAST: Yes.

JUDGE TRAVIS: Okay.

NEINAST: They said, they said that the rule had a rational basis.

JUDGE TRAVIS: Now, does not the rule of res judicata, that is, something has been decided, apply as to claims which were or could have been raised by the same parties in prior litigation? Claims rising out of the incident or iss . . .

NEINAST: I understand.

JUDGE TRAVIS: Excuse me.

NEINAST: They never actually ruled on whether the Library had the authority to make the rule in the first place. Basically, the status of the law regarding rulemaking is a multi-tiered test.

First, you must find out whether there is a policy statement. Then, you have to find out whether there are guidelines or standards, though those are sometimes optional, as per Matz. Only then do you look at reasonableness, or, or um, whether there is a conflict with the statutory intent. Okay? So, in this case, it doesn't really matter whether there was a rational basis for the rule or not. Um. If the Library has not been authorized to make such a rule, it can be as reasonable as possible, and it doesn't matter. For instance, I cited Jacobsen in the trial court. That was the first ruling that said that, um, vaccinations were, were acceptable. Okay? Could the Library decide that everybody who had to come into the Library had to prove that they'd been vaccinated? It certainly passes rational basis. It certainly . . . I don't know how reasonable it would be, but it certainly passes rational basis. Okay, the question is, whether that is the way the legislature wants the Library to restrict their patrons. OK?

Um. So, there is no place in the Revised Code that supports the notion that the Library has been granted the power to make police power regulations. The Library has pointed to no such public policy declaration. And the trial court pointed to no public policy declaration. The only thing that has been pointed to is "proper operation and management" or "control and management". Without anything of substance, the presumption has to be against the grant of power.

I already mentioned the multi-tiered approach. Um. The Library replies, uh, relies on Woodbridge for only the latter two, okay? But Woodbridge only addressed reasonableness. Um, the others were not at issue. Uh, Woodbridge was a lottery case, and there's a clear statutory authorization in that case. Quote, "no right to a prize award shall be assignable". Okay? So, as I already stated, in this case, collateral estoppel or rational basis is irrelevant since we never reached that the Library had not been authorized. In particular, Burger Brewing said, in their case, that because of the lack of authority that had been granted, . . . hadn't been granted, the question of reasonableness was moot.

The trial court found a broad, plenary grant of power. This completely misses the point. It doesn't matter how broad or unambiguous the rulemaking statute is if there is no policy statement supporting the rule. Regarding "proper operation and management", the broader the interpretation required to support the rule, the more it's really an admission that there is no such policy statement. Are there any polista . . ., policy statements at all to support any supportive, any kind of rulemaking by the libraries? I think there is. The whole gist of Chapter 3375 is to ensure essential library services to all the citizens of the State of Ohio, and that's actually said in 3375.82 regarding grants by the State Library.

So, to restate, the policy is to provide service, not to deny service. All of the existing Library rules, with the exception of the barefoot rule, supports that policy principle. For when other patrons are interfering with the provision of the library service, then rules restricting them are authorized. All other rules, except for the barefoot rule, and a couple police power ru . . ., police power rules that have specific statutory authorization, fall into that category. But nowhere is there a specific mention of this power.

And the police power is special. The Library is acting as if they have municipal home rule authority, that is, the power of local self-government, and the power to make local police, sanitary, and other similar regulations. The constitution distinguishes between the two. So does the statute on limited home rule townships. "Proper operation and management" describes local self-government, but has nothing to do with local police, sanitary, or similar regulations.

I'd also like to revisit "guidelines and standards". What are the reasons for occasionally foregoing that? And that's expertise. Um, where is the Library's expertise in health? Expertise in health is in the Columbus Health Department. We have the affidavit from Morgan Condo that states there is no Department of Health regulation requiring shoes in any public building. The Library also showed their lack of expertise in the Columbus Monthly article in which Patrick Losinski, the Executive Director of the Library, said quote "libraries are similar to museums, airports, and courthouses". As my affidavits show, I go to those sorts of places all the time barefoot. OK. I shop all sorts of places. None of them have any sort of sim, of rule. The Library just doesn't know about this issue.

The Library also brings up the liability issue. But I think that's really just an end-around for their lack of police power. Nowhere is it suggested in the Ohio Revised Code that this is the proper way to deal with liability issues. We also know the, that library patrons are licensees for which the library need only refrain from wanton and willful conduct. Furthermore, as in my additional authority, the library has sovereign immunity, to large extent, in everything except, um, physical defects of the building. Ironically, when you look at the incident reports, the only injuries that seem to be related to physical defects of the building are people getting their feet caught under opening doors.

Thus, the previous discussion on policy statements applies. Where is the policy that the way to deal with liability concerns is to exclude patrons? It's not there, and no other governmental body does this.

JUDGE TRAVIS: Mr. Neinast.

NEINAST: Yes.

JUDGE TRAVIS: I apologize for interrupting you again, but it's a thought that comes to mind. You're objecting to a rule that requires shoes, and I don't mean to demean your argument by saying this.

RAN: Sure.

JUDGE TRAVIS: You probably know where I'm going. What if the rule said you must wear appropriate clothing in the sense of something that covers your body to some degree? And we don't want nudity in the, in the ... uh ... Would that be a reasonable regulation?

NEINAST: Um ... maybe. Okay. Um, three, three points on that.

JUDGE TRAVIS: And I don't want to divert you from your argument.

NEINAST: Sure, absolutely, absolutely. First of all, the Library certainly could not be using their safety and liability excuse. Okay? Second of all, let me distinguish, let's just say, the shirtless part. Let me distinguish it. Um, bare skin on a chest, for instance, is something that we don't see every day. Okay? However, the skin of a bare foot is completely exposed in flip flops or sandals. So, with bare feet, there's nothing new being shown that there might be for a shirtless patron. And, and finally, um, we don't really know whether that would be disruptive or not. Whether that would be denying service to other patrons, which is what I say is the policy statement of 3375. Okay?

JUDGE TRAVIS: We're getting ...

[Crosstalk.]

NEINAST: Okay? So the answer is I don't really know at this point. We don't really have facts before us that would tell us. Um, you know you see sometimes women wearing halter tops and that gets away with ... you know, and that seems to be allowed. I'm not sure what the right answer ... but I think that the disruptive standard, um, would apply, because I think that's what the policy statement, the declared policy statement of the legislature is.

JUDGE TRAVIS: Uh-huh.

NEINAST: Okay. Finally, I'd like to just address what are the practical effects if this rule were removed. There would have no effect in the library. Evidence has been presented in my affidavits that there was, it was not disruptive at all. I used the Reynoldsburg branch twenty times; nobody ever even noticed me. That's the case also within the interrogatories. I used the Main branch, . . ., uh, . . ., I was only even noticed a quarter of the time that I was there. And even then sometimes it took an hour or so. Um, I use the Pickerington Library. I use these museums, airports, courthouses, . . . It really doesn't bother people. It's not disruptive. It causes no difficulty. If the rules were . . .

JUDGE PETREE: How does it come up, then?

NEINAST: Pardon?

JUDGE PETREE: How did this come up?

NEINAST: Occasionally a guard would see me and say, "Oh, we've got a rule against this. We've got to do something."

JUDGE PETREE: Did they let you in anyway?

NEINAST: No, then they would, then they would throw me out. And one time I was officially evicted for a day.

JUDGE PETREE: You're about down to three minutes, Mr. Neinast.

NEINAST: Okay.

JUDGE PETREE: You can use them now, or later.

NEINAST: Okay. In conclusion, your honors, during the Library's argument, I shall be listening very carefully for any sort of policy declaration authorizing their police power rule, keeping in mind that when there is doubt as to the grant of power, the presumption is against the grant. Such a policy declaration is absolutely necessary. It is not optional, and it is not there. Such a . . . and as I listen, I will be keeping in mind that, the broader the Library wants "proper operation and management" to be interpreted, the more they are admitting that no such policy declaration exists.

Thus, I request that this Court reverse the Trial Court's grant of summary judgment, and remand with an order granting my motion for summary judgment.

Thank you.

JUDGE PETREE: Thank you. You've got two minutes and twenty-two seconds left. All right. . . .

Ms. Dane?

DANE: Good morning. May it please the court, I am Mimi Dane, and I'm here on behalf of the Board of Trustees of the Library and the Executive Director, Pat Losinski.

The issue in this case, your honors, is really very simple. Has there been a statutory grant of authority, giving the Library the abilities to promulgate and enact rules for the proper control and management of the library. And the answer is, unequivocally, yes. Our Revised Code, section 3375.06, specifically, the legislature provides to the library board of trustees the authority to manage and control libraries. That's the specific . . .

JUDGE SADLER: But I think the argument is, . . . if I can interrupt you, I apologize, is that it doesn't go to operation and management. [unintelligible] says control. Can you address that?

DANE: Yes. 3375.06 says "will review, manage and control the library," 3375.40(H) says the board has the statutory, has the authority to enact rules for the proper operation and control of the library, and management of the library. And it's the Library's contention that this rule, the Code of Conduct, in the Library, is a rule for the operation of the Library. And it is a direct authority by the legislature to enact such a rule.

Now, Mr. Neinast has raised some issues with regard to, is there a policy, has the legislature enacted a specific policy that would allow the library to regulate wearing shoes, or wearing clothes, or carrying a gun, or any other kind of behavior that is precluded under the Code of Conduct. And the answer is that, that the Ohio Supreme Court has consistently said that if the rule is a rule, if the grant of authority is a grant of authority with regard to the general welfare, public safety, and a moral area, that sort of gray area, then it, under the Matz case, and under the, um, Blue Cross case that is cited in the Brief, then, specif . . ., a specific policy need not be provided by the legislature, and that deference is given to the administrative body that's responsible for that. I think in, in the, um, Blue Cross case, and I'll quote the language, it says, "we hold that a statute does not unconstitutionally delegate legislative power if it establishes through legislative policy and standards the practical and an intelligent principle to which the administrative officer or body must conform, and further establishes a procedure whereby the exercise of discretion can be reviewed effectively." And here's the critical line of that decision: "Ordinarily the establishment of standards can be left to the administrative body, if it is reasonable for the General Assembly to refer, defer to that officer's or body's expertise.

Now, there's two points of that that are important. One, the Library and the Board of Trustees is the expert in what conduct is disruptive and is not disruptive, what conduct creates safety or fiscal liability, or the potential for that, for its patrons. They are the expert in making that determination. The second aspect of that is that the process that the courts have established, and that the legislature has established, is that there is a review. If the Library enacted a rule under its Code of Conduct that said, all patrons, in order to get into the Library, and I'll use the example of Mr. Neinast, in order to get into the Library, must present evidence of a vaccination. Then under the Woodbridge decision, and under the subsequent decisions of this court, and other courts, the, . . ., this court would have the obligation to take a look at the rule and make a determination whether that rule was reasonable. Rules enacted by administrative bodies are presumed to be reasonable, presumed to be valid, unless they are unreasonable and in conflict with some other provision. So, if a Board of Trustees of the Library enacted a rule that was unreasonable, it would be reviewable by the Court of Common Pleas and this Court. Three courts now, the Federal Courts specifically, have ruled that this rule is reasonable. It does not deny access to the Library. Mr. Neinast wants to come to the Library and use it. The court, the Sixth Circuit has said he has a constitutional right to do so, and this rule doesn't prec, preclude him from doing so. All he has to do is put on his shoes. And that the rule is related, . . ., is rational and related to a legitimate governmental interest.

JUDGE PETREE: Flip-flops count as shoes now if he wants to wear those?

DANE: Yes sir.

JUDGE PETREE: Zories I learned them as. [??? at 5:01].

JUDGE TRAVIS: So it's anything that covers the bottom . . .

JUDGE PETREE: Sole.

JUDGE TRAVIS: . . . of the foot.

DANE: It's the sole of the . . .. It's the sole. The concern, that. . .. The evidence before the Sixth Circuit, and before Judge Marbley um, which Mr. Neinast is bound by, is that there are in, there is in the Library, uh, dangerous to the bottom of somebody's soles[??? at 5:22]. Unfortunately, a lot of places, there's feces, there's cut glass, there's blood, there's all kinds of hazards that the Library has made the determination that for its own protection, and its protection of its patrons, requires something on the bottom of the, of the foot.

Could that rule have been drawn in a different way? Yes, but it's the Library that gets to make that decision in the first instance.

JUDGE TRAVIS: Mr. Neinast suggests, at some point, um, I think in additional authority that he cited that the Library is not liable for injuries to patrons or something of that nature. Would that impact at all on the fact of the liability or non-liability. Does that impact at all on the argument that you make?

DANE: No. No it doesn't. And it doesn't for this reason. First of all, I don't think that the supplemental authority goes as far as Mr. Neinast suggests, that there's been a complete waiver of liability.

JUDGE TRAVIS: Uh-huh.

DANE: And, as your honors know, whether there is a waiver of liability or not is an issue that is repeatedly litigated and the Library has the ability and the authority to draw the line and say, for purp . . ., for our protection, for the fiscal protection of the Library, we draw the line here. Now, you may draw it differently. Mr. Neinast may draw it differently. But it is within their control and statutory authority to make that line.

JUDGE TRAVIS: Do you feel that the issue of liability is the sole thing that we should look at or is it legitimate for the Library Board to determine that, perhaps for altruistic reasons, they don't want people being injured by stepping on broken glass, whether they're liable or not.

DANE: I think it goes . . .

JUDGE TRAVIS: It that a legitimate issue? . . .

DANE: Yes, it is, your honor. Yes, it is, your honor.

JUDGE TRAVIS: Okay.

DANE: Yes, it is. The rules are enacted for the protection of the patrons.

And if you have no further questions . . . Thank you.

JUDGE PETREE: Thank you very much.

Mr. Neinast. You may wrap it up.

NEINAST: Thank you, your honor.

First, I'd like to address the control and management, um, that they have in 3375.06. It specifically says that the Library has control and management "and in the exercise of such control and management shall be governed by sections 3375.33 to 3375.41." Okay. So there's nothing new there, as opposing counsel points out. It's still, the only thing that's there is "proper operation and management."

When she talked about brief, the, Matz, it has to be, if you read it carefully, it says there must be policies and standards, but that sometimes the standards can be foregone. It never says that the policy itself can be foregone. Burger Brewing, for instance, makes it very clear that there still must be a discernible public policy declaration. There is no such thing here. The Library is a creature of statute. It can only do what it has specifically been authorized by the legislature to do, and they are claiming the right to protect me from myself. Tradi . . .

JUDGE TRAVIS: Doesn't the Health Department do that regularly? There are people who have, for religious reasons, argued vehemently against innoculation of children and so forth.

NEINAST: Um. We're actually getting back into rational basis, which . . .

JUDGE TRAVIS: Okay.

NEINAST: I'm precluded from, but let me just say that, in every instance that I've been able to find, even seat belts, whatever, there's always, it's never protecting somebody from themselves. They're protec . . ., protecting the public at large from these sorts of issues. Okay? Even seat belts, it's maintaining control of the vehicle, and any occupants of the vehicle. Plus the fact that if somebody gets killed, there's a tremendous impact on society as a whole. So it's always been society as a whole. And this is one of the reasons why I disagree with the Federal, Federal, um, . . . result.

So, we've heard no policy declaration. All we've heard is a plea that "proper operation and management" be interpreted broadly. And generally, if this is sufficient, then it makes a nullity of the constitutional provision, okay, and it makes a nullity of nearly one hundred years of precedent. There's simply is no public policy declaration that supports the Library's police power regulations.

Thank you, your honors.

JUDGE PETREE: Thank you, both. The case is submitted. You will be advised of our decision.