I. INTRODUCTION

Defendants continue to attempt to cast this case into the question of whether there is a constitutional right to go barefoot. It is instead a case of 1) whether the Library's time, place, and manner restriction on receiving speech is narrowly tailored to serve any valid significant government interest; 2) whether the Library may arbitrarily infringe upon the liberty interest of free adult citizens in their mode of personal appearance or dress; 3) whether associated free speech may be suppressed; and 4) whether the Library failed to provide due process by allowing the Director to unilaterally enact a barefoot rule with no authority to do so, and to enforce that rule against Plaintiff.

Defendants have failed to meet their burden for opposing Plaintiff's motion for summary judgment. The law requires that, as Plaintiff properly supported his Motion for Summary Judgment, Defendants present affirmative evidence. Instead, they offered speculation, subjective opinions, and their "own wisdom and common sense." The law requires more.

Defendants have failed to provide evidence of any sort on the supposed link between the presence of barefooted patrons in their library and their proffered governmental interests. They misconstrue the scope of the government's interest in health and safety, and assume an improbable, complex, and unspecified chain of events by which bare feet somehow impact the Library's fiscal integrity.

The barefoot policy in the Library is subject to heightened scrutiny, by virtue of both the First Amendment and the substantive due process/liberty interest right to personal appearance. Not only does the barefoot policy not survive this heightened scrutiny, it cannot even survive the rational basis test.

By enforcing a policy that is null and void under state law, Defendants failed to provide Plaintiff procedural due process; they also did not provide the minimal due process afforded under their Eviction Procedure.

Plaintiff is entitled to Summary Judgment as a matter of law on all of his causes of action.

II. LAW AND ARGUMENT

A. SUMMARY JUDGMENT FOR PLAINTIFF IS REQUIRED

Defendants have failed to meet their burden for opposing Plaintiff's motion for summary judgment.

The standards in the Sixth Circuit for summary judgment are given in Street v. Bradford, 886 F.2d 1472 (6th Cir. 1989).¹ 

As restated in Blank v. Peers, 991 F.2d 794 (6th Cir. 1993) (unpublished, Exibit 5):

Although the party opposing summary judgment need not produce evidence that would be admissible at trial, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), he must present "affirmative evidence in order to defeat a properly supported motion for summary judgment." J.C. Bradford, 886 F.2d at 1479 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). ^Q>

Plaintiff presented evidence that there were no hazards peculiar to barefooted patrons; Plaintiff also identified the lack of a plausible connection between barefooted patrons and the fiscal integrity of the Library. In response, Defendants presented Library incident reports. (Defendants' Reply in Support of Motion for Summary Judgment and Memorandum Contra Plaintiff's Motion for Summary Judgment (hereafter Def. M.C.), Appendix Tab A, #8). These reports are not evidence because they do not show if or how any of the conditions in the reports are a hazard to barefooted patrons, and, more importantly, the reports show no connection between barefooted patrons and an impact on the Library's fiscal integrity. Instead, Defendants rely on their "own wisdom and common sense" to proclaim the connection.

However, as stated in Cox v. Kentucky Department of Transportation, 53 F.3d 146, 150 (6th Cir. 1995):

[A] nonmoving party may not avoid a properly supported motion for summary judgment by simply arguing that it relies solely or in part upon credibility considerations or subjective evidence. Instead, the nonmoving party must present affirmative evidence to defeat a properly supported motion for summary judgment. ^Q>

Defendants have presented no "affirmative evidence" to support their claims of a connection. Summary judgment in Plaintiff's favor is required.

Defendants were given their opportunity to show how conditions in the Library would affect their fiscal integrity. This is a critical issue, for without this connection, the barefoot policy does not serve (and, indeed, has no rational relationship with) their stated governmental interest. As stated in Street v. Bradford, 886 F.2d 1472, 1478 (6th Cir. 1989):

[T]he movant could challenge the opposing party to "put up or shut up" on a critical issue. . . . [I]f the respondent did not "put up," summary judgment was proper. ^Q>

Summary judgment in Plaintiff's favor is proper.

Defendants seem to think that they can rely solely on their "own wisdom and common sense," quoting from Sammy's Ltd. v. City of Mobile, 140 F.3d 993, 997 (11th Cir. 1998), a nude bar case in which the issue was whether allowing nudity in bars caused neighborhood problems. In contrast to Defendants' use of the quote, the full quote reads:

The district court located this reasonable basis in the experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well as their own wisdom and common sense. This is sufficient. ^Q>

It was the plethora of other, already acknowledged evidence in the records of other similar court cases for cities across the country that made up the sufficiency of the evidence, not the court's "own wisdom and common sense" alone.

Defendants also rely on Suburban Lodges of America v. City of Columbus Graphics Comm'n, 2000 Ohio App. LEXIS 4701, *18 (Franklin Cty. 2000) (Def. M.C., App. Tab E), quoting it with

"[W]e will not second-guess the city's common-sense conclusion . . . Evidentiary proof in this regard is not constitutionally required." ^Q>

The Suburban Lodges quote relies on Ackerley Communications of the Northwest Inc. v. Krochalis, 108 F.3d 1095 (9th Cir. 1997) for the rationale behind this quote. In Ackerley, a case involving the ban on construction of new billboards in Seattle, there was also a wealth of preceding court cases upon which to base their decision. There are no similar cases providing data for this case. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (plurality), the Supreme Court said

[W]e note that a commercial speech regulation "may not be sustained if it provides only ineffective or remote support for the government's purpose." Central Hudson, 447 U. S., at 564. For that reason, the State bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so "to a material degree." Edenfield, 507 U. S., at 771. . . . ^Q>

However, without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State's interest in promoting temperance. ^Q>

Thus, Defendants are not allowed to rely solely on their own aesthetic sense but must present some sort of affirmative evidentiary support. They have not done so, and Plaintiff must be granted summary judgment.

B. HEIGHTENED SCRUTINY IS THE APPROPRIATE STANDARD OF REVIEW

The appropriate standard of review is not rational basis, as Defendants attempt to dictate, but heightened scrutiny. However, even with the rational basis standard, no rational relation to any legitimate government interest has been, or can be, shown.

1. The "Right to Receive Speech" Is an Affirmative Right Requiring Heightened Scrutiny

Defendants have chosen a novel approach in their attempt to avoid any sort of heightened scrutiny. They claim that the Kreimer Court was unique in its usage of the "right to receive speech" as an affirmative right, that this right is used only to confer standing,²  and that "willing speakers" are vital. Unfortunately for the Defendants, this approach is unavailing.

While Defendants assert that the "right to receive speech" is not an affirmative right, and exists only to provide standing, they have not provided any precedent in which the right to receive speech was denied or limited for that reason. And in fact they cite a number of cases in which the First Amendment right to receive speech was upheld, with no denigration to the right because the speech was in reception instead of transmittal. While Defendants call the right a "corollary,"³  their quote from Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 (1976) calls the right "reciprocal."⁴  Neither the right to receive nor to transmit speech has precedence over the other. They make an integral whole. Even the quote that Defendants emphasized supported this: "the protection afforded is to the communication, to its source and recipients both." ^Q> Id. at 756 (additional emphasis added).

Defendants think it relevant that it is only the censoring of this speech that is important when receiving speech, since that was the issue in Virginia. However, in Fox v. Board of Trustees of State University of New York and Clifton R. Wharton, 841 F.2d 1207 (2nd Cir. 1988), the constitutional rights of students to receive product demonstrations in their dorms was specifically addressed. This was a time, place, and manner regulation, since students were free to receive the information outside their dorm rooms, and thus no censorship was occurring. The court concluded that the students had a right to receive information: "The SUNY Regulation survived constitutional scrutiny below only because the First Amendment rights of students [to receive speech] were ignored." ^Q> Id., at 1214. And this case was specifically about the students' right to receive speech, as the company (the "willing speaker") that wanted to give the demonstrations was no longer a party to the suit. While the decision was remanded by the Supreme Court (Board of Trustees v. Fox, 492 U.S. 469 (1989)), it was as a result of clarifying that the least-restrictive-means test was not applicable under the Central Hudson⁵  test. The Supreme Court left untouched the exposition of the affirmative right of the students to receive this commercial speech.

Also reconsidered as part of the same set of remands was Project 80's Inc. v. City of Pocatello and City of Idaho Falls, 942 F.2d 635 (9th Cir. 1991). In this case, under the Idaho Falls and Pocatello ordinances, residents who wished to receive uninvited door-to-door solicitors had an affirmative obligation to post a "Solicitors Welcome" sign. This time, place, and manner restriction on the residents' right to receive speech was also deemed impermissible. Again, it is the receiver's rights that are of import.⁶ 

Defendants also express concern that a "willing speaker" is required. When the Library imposes arbitrary restrictions on those wishing to receive the information available there, it also interferes with the rights of the authors who are speaking through the books and other volumes available there. Each and every one of the 12 million volumes in the Library has an author or artist as a willing speaker wanting their information to go to every interested patron. And Mr. Black wants to prevent their message from being fully sent to those who do not meet his arbitrary standard of "dress[ing] appropriately for a public building." (Defendants' Response to Plaintiff's Second Set of Interrogatories (hereafter "Def. Resp. Int. II"), #13, Letter from Mr. Black to Mr. Glasgow; also Def. M.C., App. Tab A, #13).

The Sixth Circuit has specifically approved the right to receive communications, and the effect thereon of a time, place, and manner restriction in Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985), a case involving a prisoner's right to receive publications.

Heightened scrutiny is the appropriate level of review for the Library's barefoot policy, since Plaintiff was engaged in receiving First Amendment communications, and not disturbing other patrons. The procedure must be narrowly tailored to serve a significant governmental interest, and it is not. Defendants "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994).

2. The Right of Personal Appearance Requires Heightened Scrutiny

A heightened scrutiny beyond simple rational basis was used in a number of the cases involving hair-length.⁷  In each case, the deciding court used a balancing test (or stronger), going beyond looking for a simple rational relationship to a legitimate governmental interest.

Defendants claim that this Circuit's authority is directly contrary to using any heightened scrutiny, citing Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970) and Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971).⁸  These cases both pre-date and are superseded by Kelley v. Johnson, 425 U.S. 238 (1976), which assumed a liberty interest within the Fourteenth Amendment. Thus, the law in this Circuit is, at this time, controlled solely by Kelley. This liberty interest was assumed, not because the court was attempting to minimize the interest, but because no more was required to decide the case. The Supreme Court in Kelley specifically pointed out that

More recently, we have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment. If such state regulations may survive challenges based on the explicit language of the First Amendment, there is surely even more room for restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment. ^Q> 425 U.S., at 245. (citations removed)

The use of rational basis was appropriate, not because the right of personal appearance is such a minimal right that only rational basis applies, but because the government has such a strong interest in determining its internal operations.

The general principle being applied is the reduction of scrutiny for government operations. Kelley was a government employee (a policeman); as such, a regulation that required heightened scrutiny if applied to a regular citizen only required rational basis scrutiny when applied to the government employee. If the Library wishes to require that its librarians wear shoes, then a rational basis is sufficient; however, to impose the same requirement on its patrons demands a stricter scrutiny.

This principle of the reduction of scrutiny for government operations is well-supported. As the Supreme Court said in United States v. Kokinda, et al., 497 U.S. 720, 725 (1990):

It is a long-settled principle that governmental actions are subject to a lower level of First Amendment scrutiny when "the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, . . . but, rather, as proprietor, to manage [its] internal operation[s] . . . ." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). ^Q>

The lower level of scrutiny (rational basis) that was used when examining the right of personal appearance as applied to a policeman dictates that a higher level of scrutiny be used when it is applied by a rulemaker against ordinary citizens.

The Kokinda Court also said

Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Regulation of speech on property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness. ^Q> 497 U.S., at 726. (emphasis added)

In this quote, the emphasized sentence shows the reduction in scrutiny applied to speech activity when applied to government operations.⁹ 

If the correct level of scrutiny for the right of personal appearance as applied to regular citizens were rational basis, as claimed by Defendants, the application of the principle of reduced scrutiny for government operations would have reduced the scrutiny in Kelley to no scrutiny at all. This also explains why the discussion regarding the right of personal appearance during the ratification debate over the Bill of Rights¹⁰  was unavailing in the dissent of Kelley: the heightened scrutiny required by the strength of the right of personal appearance (possibly even strict scrutiny) was reduced due to Kelley's status as a policeman. If not for the principle of reduced scrutiny for government operations, the part of the dissent regarding this personal freedom would instead have been part of the opinion. Again, Justice Scalia, in Rutan v. Republican Party, 497 U.S. 62, 98 (1990), confirmed that the Supreme Court "ha[s] consistently applied a lower level of scrutiny when `the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, . . ., but, rather, as proprietor, to manage [its] internal operatio[ns]. . . .'" ^Q> No such reduction in the level of scrutiny is allowed here.

This principle also applies to the schoolboy hair-length rulings that applied rational basis. The level of scrutiny for those cases was reduced because of the strong tradition of latitude given to decisions made by school administrators, and the status of the schoolchildren as minors. "[W]e feel compelled to recognize and give weight to the very strong policy considerations in favor of giving local school boards the widest possible latitude in the management of school affairs. School administrators must daily make innumerable decisions which restrict student liberty." ^Q> Karr v. Schmidt, 460 F.2d 609, 615 (5th Cir. 1972). See also Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) ("the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." ^Q>).

Finally, a heightened scrutiny is required by the Supreme Court under Schad v. Borough of Mount Ephraim, 452 U.S. 61, 71 (1981):

[W]hen the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, "this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." ^Q>

Thus, a heightened scrutiny is required for the right of personal appearance. If the Library wishes to require that its librarians wear shoes, then a rational basis is sufficient; however, to impose the same requirement on its patrons demands a stricter scrutiny as a matter of law.

3. Defendants' Proffered Governmental Interests Are A Mere Circumlocution

In the shirtless jogger case, DeWeese v. Palm Beach, 812 F.2d 1365, 1368 (11th Cir. 1987), the court concluded:

After careful study and thought, we conclude that the Town's assertions of generalized interests in history, tradition, identity, and quality of life are in truth a mere circumlocution for enforcing the town fathers' view of the proper fashion for personal dress in Palm Beach. ^Q>

Such, too, is the case here. When Mr. Black wrote the letter to Mr. Glasgow (Plaintiff's Motion for Summary Judgment, and Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (hereafter Pl. M. S.J.), Ex. 9), his reason was to get "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." The "public health and safety" and "fiscal integrity" reasons were introduced simply as a response to this lawsuit. However, under First Amendment considerations:

The government must also show that the articulated concern had more than merely speculative factual grounds, and that it was actually a motivating factor in the passage of the legislation. ^Q>

Krueger v. City of Pensacola, 759 F.2d 851, 855 (11th Cir.1985). See also Board of Trustees v. Fox, 492 U.S., at 480 ("since the State bears the burden of justifying its restrictions, . . ., it must affirmatively establish the reasonable fit" ^Q>).

The articulated concerns of the Library were clearly not motivating factors in the promulgation of the barefoot policy, and Defendants have not justified their restrictions.

C. PLAINTIFF'S MESSAGE IS PARTICULARIZED

Defendants seem to think that other people, on viewing Plaintiff walking barefoot in the Library, will think that Plaintiff may have forgotten his shoes. Do people really leave the house and forget to put on shoes? Certainly not. Instead, viewers will assume that it is deliberate and contemplate the point the barefooted person is making. This is exactly what happened in the U.S. Capitol Building (Pl. M. S.J., Exhibits 1, 2, and 3), and with Assistant Director Chris Taylor in the Library itself (Pl. M. S.J., Ex. 1). Plaintiff has presented evidence that there is a great likelihood that the message is and was understood by those viewing it. Defendants have offered speculation.¹¹ 

The surrounding circumstances of the Library also help the viewers understand Plaintiff's message. If Plaintiff were barefoot while playing Frisbee in a park, then no discernible message would be conveyed. If Plaintiff were simply sitting on a Library chair with his shoes removed and next to him, no discernible message would be conveyed. However, the Library is festooned with "Shoes required" signs at its entrances (Pl. M. S.J., Ex. 1). Shoeless people who are otherwise well-dressed (or dressed in an otherwise "normal" fashion) are not regularly seen walking around in public buildings such as the Library with no shoes in sight. These conditions are perfect for the particularization of the message, and the understanding of the message by viewers.

Other surrounding circumstances that help the "great majority" of viewers understand Plaintiff's message are the fact that businesses such as McDonald's and CVS have posted their inaccurate signs (Pl. M. S.J., Exhibits 1D and 1E) claiming that Health Departments require footwear, and the corresponding misconception that going barefoot in buildings is illegal. This is what prevents Plaintiff's argument from being circular. That Plaintiff is barefoot in the face of such signs particularly particularizes the message and makes it understandable.

In fact, Plaintiff's mode of delivering his message is carefully tailored specifically for the Library environment. While he could make the message closer to the sort of conduct that Defendants cite as examples of particularized speech, burning shoes in the Library really would violate the law and disturb other patrons. Shouting out his message in the main hall would also disrupt the Library environment so that other patrons would be unable to use the Library for their own reception of speech. Even if Plaintiff limited himself to approaching individual patrons to convey his message verbally one-by-one, he would still be disrupting their enjoyment of the Library and their ability to receive speech. Instead, by actually walking barefoot with no shoes in sight, the message is conveyed in a totally non-disruptive but understandable way.

Additionally, Plaintiff's message most clearly is ideological, and it is at firm ideological variance with Mr. Black's contention that bare feet are not "appropriate[] [dress] for a public place." (Pl. M. S.J., Ex. 9) Plaintiff contends that they are perfectly acceptable, and the message of acceptability is also conveyed. It is also now clear that strict scrutiny ought to be applied as it is Mr. Black's intent specifically to censor Plaintiff's message due to his disagreement with it.

In Castorina v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001), a Hank Williams, Jr. T-shirt with a Confederate flag was held to be sufficiently particularized to convey the message of "pride in southern heritage". ^Q> As shown above, Plaintiff's message and his method of conveying it are much more effective than Castorina's.

D. THE BAREFOOT POLICY DOES NOT SERVE AND IS NOT RATIONALLY RELATED TO ANY GOVERNMENTAL INTEREST

1. The Barefoot Policy Does Not Address the Health and Safety of the General Public

Defendants simply repeat their contention regarding health and safety from their Motion for Summary Judgment, and do not address Plaintiff's points on the issue from Plaintiff's Motion for Summary Judgment. Plaintiff raised the distinction between the legitimate government interest in the health and safety of the general public, and the lack of government interest in protecting an individual from him/herself. Defendants did not address this issue.

Again, the legitimate governmental interest is the health and safety of the general public. See Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir. 1995) and the rest of the discussion in Pl. M. S.J., Section III(A)(2), pp. 5-7. This is distinguished from protecting a person from himself¹²  (even assuming that barefooted patrons are dangers to themselves, which Plaintiff disputes, and for which Defendants have not provided evidence). The Library (without evidence) is, in effect, claiming that the barefoot policy serves the interest of protecting a person from himself.¹³  That is not a legitimate governmental interest. The legitimate governmental interest is the health and safety of the general public. The Library is not claiming that a barefooted patron somehow endangers other Library users. The barefoot policy does not serve, nor is it related at all (rationally or not) to, that governmental interest.

2. The Barefoot Policy is not Related to the Fiscal Integrity of the Library

Defendants also simply repeat their contention regarding fiscal integrity from their Motion for Summary Judgment, and do not address Plaintiff's points on the issue from Plaintiff's Motion for Summary Judgment. Plaintiff raised the issue that, under Ohio tort law, the Library has no duty beyond that of ordinary care, so the normal, minimal hazards in the Library have no effect on their fiscal integrity. Defendants did not address this issue. Plaintiff raised the issue that a fear of unjustified lawsuits is not a valid government interest. Defendants did not address the issue.

Defendants present incident reports that show that there are occasionally occurrences of adverse conditions of one sort or another in the library. However, they have provided no hint of linkage between those adverse conditions and the presence of barefooted patrons. Nor, more importantly, have they provided any sort of linkage between the presence of barefooted patrons and the fiscal integrity of the library. Under tort law, absent clear negligence, the Library has no liability. Since they have no liability to a barefoot patron, no regulation can reduce it; thus the regulation does not serve a legitimate purpose.

The Library provided 99 incident reports spanning approximately the last 5 years in their Defendants' Answers to Plaintiff's Second Set of Interrogatories (Def. M.C., App. Tab A, #8). The Library system had 19 slip-and-fall incidents inside their premises during that period. Of those, 12 were slips on a wet surface. As the uncontested evidence presented in Pl. M. S.J. showed, a bare foot would have immediately felt the presence of the slippery substance, and the fall would probably have been avoided. (Pl. M. S.J., Exhibit 1, Neinast Affidavit, ¶10) Net fiscal impact on the Library: reduction in exposure to risk of lawsuit. In an attempt at scaremongering, the Library talks about the presence of "biohazards," such as blood and human waste. The momentary presence of a "biohazard" does not naturally connect to a fiscal impact simply due to the presence of a barefooted patron. Again, a barefooted patron (assuming such an open and obvious danger was somehow visually or olfactorily missed) would tactually notice and avoid the problem immediately.¹⁴  It would then be reported that much sooner to Library personnel who could cordon off and remove the problem. However, shod persons might not even notice that they had walked in "biohazards," and might continued to walk throughout the Library, thereby spreading the "biohazards" around. Defendants also expressed concern about broken glass (Def. M.C., p. 22). There were 15 incidents of broken glass on the Library grounds. All of them were on the outside of the Library, where the barefoot policy uncontestedly does not apply (See Pl. M S.J. p. 16). Almost all of the incidents were cases in which security discovered windows that had been broken overnight and the glass had been cleaned up before the Library even opened. Thus, these incidents show no connection with fiscal integrity. In addition, just as it is a myth that Health Department Regulations require footwear in public buildings, so too is it a myth that bare feet are somehow particularly susceptible to injury. They are wonderfully puncture-resistant, abrasion-resistant, and provide much better sensory feedback to adverse conditions than shod feet, thereby allowing a hazard to be avoided or ameliorated.¹⁵ 

Again, the Defendants have not shown, and can not show how the barefoot policy actually relates to or serves to protect their fiscal integrity. The Library spins their connection to fiscal integrity with gossamer threads.

Defendants also express concern about the "potential expense of defending lawsuits," justified or not. An unreasonable and unsupportable fear of being sued is not a legitimate governmental interest. There is no indication that barefooted patrons are more likely to file unsupported lawsuits than others. Anybody can file a lawsuit for any reason. There is not even an indication that the supposed tort crisis is real.¹⁶  And Defendants ignore the arguments in Pl. M. S.J. (pp. 8-13) that they only have the duty of ordinary care ( Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (Ohio 1985)), that patrons are responsible for any inherent risks of an activity ( Brinkman v. Ross, 68 Ohio St.3d 82 (Ohio 1992)), that Ohio has a comparative negligence statute, O.R.C. §2315.19, and that the Library's own insurance policy has no requirement that they enforce a barefoot policy. The policy is clearly not rationally related to their stated governmental interest.

Finally, Defendants rely on City of Mayfield Heights v. Woodhawk Club Condo. Own., 2000 U.S. App. LEXIS 1835 (6th Cir. 2000) (unpublished, and therefore subject to the citing rules in Sixth Circuit Rule 28(g)) (attached to Def. M.C., App. Tab D) to support their proposition that fiscal integrity is a governmental interest for other than large government programs like Social Security, and that it can be an interest for municipal corporations. Just as for the other fiscal integrity cases, however, this involved the government making choices over just who would receive government services of one sort or another, and the fiscal integrity interest involved the costs of providing those services. That is not the situation here.

Therefore, the Library's barefoot policy does not serve, and is not rationally related to any government interest in the fiscal integrity of the Library. In addition, Defendants attempt to use the "fiscal integrity" argument in a way it has never been used before. Plaintiff also re- iterates that Defendants have failed in their burden to provide any affirmative evidence of such a link, as required in response to a motion for summary judgment. They rely instead, fatally, on their "own wisdom and common sense." Summary Judgment for Plaintiff is required as a matter of law.

E. THE BAREFOOT POLICY IS NOT NARROWLY TAILORED

The barefoot policy is not even narrowly tailored. While it does not have to be a perfect match, the means chosen cannot be "substantially broader than necessary to achieve th[eir] interest." ^Q> Ward v. Rock Against Racism, 491 U.S. 781, 783 (1989). The rule completely prevents Plaintiff from receiving protected speech unless he bows to their arbitrary but dearly-held misconceptions. It also leaves him no understandable method to communicate his message. In addition, acceding to the barefoot policy is not a minimal intrusion as it forces Plaintiff to accept the abridgement of his kinesthetic sense, deprive himself of the spiritual component of immediate contact with his environment and subject himself to the fallen arches, hammer toes, bunions, and fungal-supporting conditions common to shoe-wearers.

In actuality, the rule is not tailored at all. It is a complete ban in all areas of the Library. Tailoring the rule would involve prohibiting bare feet only in limited areas that presented real and specific liability problems (assuming arguendo that such areas even existed). The incident reports do not even imply any sort of condition in the corridors or stacks that are even mildly adverse to a barefooted state, yet bare feet are banned there, too. According to the Eviction Procedure (Pl. M. S.J., Ex. 6), "no shoes" in the Library are "inappropriate dress", thus sweeping even sitting in a chair (which presumably even the Library would concede is not hazardous) under its sway. The rule is instead broadly sweeping and arbitrary; Defendants have not even shown how the policy achieves their interests.

F. THE KREIMER SHOE COMMENTS ARE DICTA

Defendants continue to insist that the Kreimer court approved the shoe regulation in the Morristown Library. In reality, the shoe rule was never before either the District Court or the Circuit Court, since Kreimer himself was never barefoot. See Kreimer v. Bureau of Police, 765 F.Supp 181 (D.N.J. 1991). The only reason it was even mentioned in the Circuit Court opinion, Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), is that the District Court modified its order so as to leave the shoe rule untouched¹⁷  (as it was not before the Court). Yes, conduct under the First Amendment which does not actually disrupt the Library may be regulated - the example given in Kreimer was putting a limit on the number of books that could be checked out at once, so as to serve the significant government interest of allowing the books to circulate to the maximal extent possible. But no First Amendment analysis of the rule was ever, or needed to be, done. This is nothing more than dicta.

G. PLAINTIFF HAS A VALID PROCEDURAL DUE PROCESS CAUSE OF ACTION

The applicability of Defendants' argument regarding procedural due process is immediately suspect when the crux of their argument depends on an unpublished disposition from a different Circuit: Reichelt v. Gates, 1992 U.S. App. LEXIS 14182 *7 (9th Cir. June 11, 1992) (Def. M.C., App. Tab F). While Reichalt relies on United States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46 (1973), the latter case dealt with the hearing requirements of the Interstate Commerce Commission, and whether they fell under Sections 556 and 557 of the Administrative Procedures Act, or under Section 553, requiring notice before rulemaking. Reichelt's concern was inadequate notice and no opportunity to comment. These cases simply do not apply here. Plaintiff is not challenging the rulemaking process, as Defendants claim. Instead, Plaintiff is claiming that, because the barefoot policy is null and void with no support in law for its promulgation, as applied, no procedural due process was afforded to Plaintiff. The policy is ultra vires. There was no valid existing procedure to apply to Plaintiff. By enforcing such a non-existent policy, procedural due process was denied to Plaintiff.

The case that does apply is Spruyette v. Walters, 753 F.2d 498 (6th Cir. 1985). Spruyette was a prisoner in a Michigan jail. Under the Michigan administrative code, he had a liberty/property interest in receiving books that did not threaten the security of the institution. However, a dictionary sent to him by his mother was confiscated, as it did not apport with a Department of Corrections Policy Directive that required all books come directly from the publisher. The Department of Corrections Policy Directive was found to be without legal effect under Michigan law and was not issued pursuant to the requirements for promulgation of an agency rule. The Spruyette court ruled that he had a procedural due process cause of action for the enforcement of this null and void rule.¹⁸ 

That parallels closely the parameters of this case. Plaintiff has a liberty/property interest in using the Library to receive speech. This interest is provided by the First Amendment right to receive speech, and equivalent guarantees under the Ohio Constitution. It is also provided by the Ohio library statutes (O.R.C. Chap. 3375) that, as implemented, is reflected in the Library's Mission Statement to "ensur[e] access to information."¹⁹  The Eviction Procedure regarding shoes is, similar to Spruyette, without legal effect, since it was promulgated by Mr. Black without any authority to do so. It is not a consequence of the Board-approved Patron Regulations. It is not an "internal procedure", since it applies not to library employees, but to patrons, and since it is not a procedure, but a rule with penalties. The details were provided in Pl. M. S.J., pp. 28-36. In addition, Plaintiff has proven no adequate remedy under state law. The Library is not an administrative agency subject to the publishing and reviewing procedures under O.R.C. Chap. 119. In addition, Mr. Black precluded any further correspondence with Plaintiff.²⁰  By enforcing a rule that was null and void, Defendants did not provide Plaintiff with due process. Plaintiff has a procedural due process cause of action.

Defendants claim that Plaintiff's complaint is merely a question of state law interpretation. Plaintiff did initially file this action in the Court of Common Pleas of Franklin County, Case No. 01-CVH-04-3104. Defendants removed it here to Federal Court. But this court has pendent jurisdiction to decide the question of the state law interpretation in order to address the nullity of the barefoot policy for the due process claim.

Contrary to Defendants' assertion, Plaintiff makes no claim that the Board exceeded its statutory powers in creating the barefoot policy.²¹  Defendant Black exceeded his powers; the Board's culpability extends to allowing him to create and enforce that policy, without valid authorization. In addition, Plaintiff also has stated a valid claim against Mr. Johnson for not even following the written Eviction Procedure by giving Plaintiff a one-day eviction when the Procedure called for a warning and chance to correct the problem. This was done under the unbridled discretion of the "spirit of the procedure", instead of any portion of the text of the Eviction Procedure. Pl. M. S.J., p. 34.

Finally, Defendants claim that, because the barefoot policy was promulgated without following state law, it is not susceptible to a 42 U.S.C. §1983 claim. This is incorrect. The right that was violated was the federal right to procedural due process, which prohibits the deprivation of a property/liberty interest secured under state or federal law. "State law may bear upon a claim under the due process clause when the property interests protected by the Fourteenth Amendment are created by state law." ^Q> Davis v. Scherer, 468 U.S. 183, 193, n. 11 (1984). See also, Spruyette, supra.

Plaintiff is entitled to Summary Judgment on his procedural due process claim.

H. THE BAREFOOT POLICY VIOLATES EQUAL PROTECTION

The barefoot policy does not classify by race, alienage, or national origin. However, by classifying one mode of footwear over another, it does impinge on personal rights protected by the Constitution: the right of personal appearance, the right of free expression, and the right to receive speech, as shown above. Thus, it should be sustained only if narrowly tailored to serve a compelling state interest. Valot v. Southeast Local School District Board of Education, 107 F.3d 1220, 1229 (6th Cir. 1997). It was shown above that it does not do so. Even if it did not impinge on any personal rights, this classification is not rationally related to any legitimate governmental interest, also as shown above.

III. CONCLUSION

Defendants are unconstitutionally restricting Plaintiff's right of free speech, right to receive speech, and right of personal appearance by promulgating and enforcing their irrational and unsupported barefoot policy. Plaintiff's message is particularized and understood. The right to receive speech is an affirmative right, and heightened scrutiny applies to any Library regulation that limits that right when a Library patron is using the Library for receiving speech. The Library's barefoot policy not only does not survive heightened scrutiny, it does not survive the rational basis test. Defendants failed to meet their burden to provide affirmative evidence showing any sort of connection between the barefoot policy and their proffered governmental interests. Summary judgment is required as a matter of law. Finally, Plaintiff stated a valid procedural due process claim, and fully supported it in his Memorandum in Support of Plaintiff's Motion for Summary Judgment. That action is virtually uncontested by Defendants. Thus, for all the reasons outlined above and in his Memorandum in Support of Plaintiff's Motion for Summary Judgment, Plaintiff respectfully requests that summary judgment be granted in his favor.

I hereby certify that a copy of the foregoing was served, by regular U.S. Mail, 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 31st day of October, 2001.

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