UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION


Robert A. Neinast

Plaintiff,
v.
Board of Trustees of the Columbus
Metropolitan Library, et al.

Defendants.
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Case No. C2-01-443

Judge Algenon Marbley

Magistrate Judge Norah King



PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff Robert A. Neinast moves the court for summary judgment with regards to the Declaratory Judgment and Injunctive Relief portions of Plaintiff's complaint (¶¶A, B, C, D, and E). No genuine issue as to any material fact that is relevant to Plaintiff's motion exists. Thus, Plaintiff is entitled to judgment as a matter of law. In the interest of conserving the court's time and resources, the accompanying memorandum combines Plaintiff's reasons supporting this motion with Plaintiff's Opposition to Defendant's Motion for Summary Judgment, since the relevant facts and issues of law closely overlap.

Plaintiff opposes Defendant's Motion for Summary Judgment because, based on the legal arguments raised by Defendants, there are genuine issues of material fact. In addition, Defendants have cited cases for propositions of law for which they do not stand and have raised arguments that are otherwise legally flawed.

Plaintiff also respectfully moves that the Court rule on all three Causes of Action, since a decision in Plaintiff's favor based only the due process claim would likely result in the library re-instating the barefoot policy following proper procedure. This would then require a whole new case to address the first and second causes.

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




TABLE OF CONTENTS


I. INTRODUCTION

II. FACTS

III. ARGUMENT

A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE POLICY REQUIRING SHOES IS NOT A VALID TIME, PLACE, AND MANNER REGULATION

1. Regulations Imposed While Receiving Speech in a Public Library Must Be Narrowly Tailored to Achieve a Significant Governmental Interest

2. Defendant's Barefoot Policy Does Not Address the Health and Safety of the General Public

3. Defendants' Barefoot Policy is Unrelated to Protecting the Fiscal Integrity of the Library, and Does Not Achieve a Valid Significant Governmental Interest

4. Plaintiff's Conduct is Consistent with the Library's Designated Purpose

5. Even If Defendants' Reasons Achieve Significant Governmental Interests, then the Barefoot Policy is Not Narrowly Tailored to Serve Those Interests and is Not Rationally Related to Any Legitimate Interest

6. Even If Defendants' Reasons are Significant Governmental Interests, then Genuine Issues of Material Fact are Raised

7. Summary Judgment for Plaintiff is Appropriate

B. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THERE IS A VALID LIBERTY INTEREST IN PERSONAL APPEARANCE

1. The Right of Personal Appearance is a Fundamental Right

a. The Right of Personal Appearance is the Only Unenumerated Right Specifically Addressed During the House Hearings on the Bill of Rights

b. The Right of Personal Appearance is as Fundamental as the Right to Travel

c. The Right of Personal Appearance Is Recognized in Many Circuits as Applying Even to School Children

d. The Right of Personal Appearance for State Employees is Evaluated Using Rational Basis Due to Strong Counter-Balancing State Interests

e. The Right of Personal Appearance For Attorneys in Court Is Balanced By Their Being Officers of the Court

f. The Right of Personal Appearance Prevents State From Requiring Male Jogger to Wear Shirt

2. Even if the Right of Personal Appearance is not a Fundamental Right, it is Strong Enough to Defeat the Barefoot Policy

C. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE PLAINTIFF'S CONDUCT WAS PROTECTED SYMBOLIC SPEECH THAT WAS A THRESHOLD TO FURTHER PROTECTED SPEECH

D. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE DEFENDANTS' RULE WAS NOT VALIDLY ENACTED

1. Defendants' Barefoot Policy is a Rule, not a Procedure, and the Delegation of Rulemaking Authority is a Legislative Delegation, not an Executive Delegation

2. Delegation Requires the Existence of Standards to Ensure that Discretion is not Abused and the Board has Provided No Standards

3. The Internal Evidence Shows that the Barefoot Policy was Created, not for Safety Reasons, but as a Dress Code, and there is No Authorization, Expressed or Implied, Granting the Director Authority to Make a Dress Code

4. Defendant Johnson Did Not Follow the (Invalid) Eviction Procedure in Giving Plaintiff a One-Day Eviction

5. Plaintiff Has No Adequate Remedy At Law

6. Summary Judgment for Defendants is not Appropriate, and Summary Judgment for Plaintiff is Appropriate

E. THE BAREFOOT POLICY VIOLATES EQUAL PROTECTION

F. DEFENDANTS BLACK AND JOHNSON ARE NOT ENTITLED TO QUALIFIED IMMUNITY SINCE THEY SHOULD HAVE BEEN AWARE OF THE UNCONSTITUTIONALITY OF THEIR ACTIONS

1. The Right to Receive Communications in the Limited Public Forum of a Public Library is Well-Established, and a Reasonable Administrator Would Have Known Not to Base a Regulation Upon Sheer Speculation

2. The Right of Personal Appearance is Clearly Established When Applied to a Free Adult not Employed by the Government

3. Plaintiff's Right of Symbolic Speech is Clearly Established

4. Defendants Made No Argument for Qualified Immunity on Procedural Due Process Violation

IV. CONCLUSION





LIST OF EXHIBITS


  1. Affidavit of Robert A. Neinast
    1. Letter from Ohio Department of Health
    2. Letter from Franklin County Board of Health
    3. Letter from Columbus Health Department
    4. CVS Sign
    5. McDonalds Sign
    6. Letter from Smithsonian
    7. Library's Mission Statement
    8. Library's Patron Regulations
    9. November 16, 2000 Letter to Larry Black
    10. March 5, 2001 Letter to Larry Black
    11. March 12, 2001 Reply from Larry Black
  2. Affidavit of Gregory V. Morgan
    1. November 23, 1997 Letter to Larry D. Black
  3. Affidavit of David DiFonzo
  4. Affidavit of Morgan Condo
  5. Affidavit of Judith F. Krug
    1. Library Bill of Rights
    2. American Library Association Code of Ethics
    3. Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage
  6. Defendants' Responses to Plaintiff's First Set of Interrogatories
    1. Memo from Chris Taylor to Larry Black; Eviction Notice
  7. Defendants' Responses to Plaintiff's Second Set of Interrogatories
  8. Defendants' Responses to Plaintiff's Second Set of Interrogatories, Exhibit 2: "Patron Regulations Policy," "Security Officer, Role of/Procedure," "Eviction Procedure."
  9. Defendants' Responses to Plaintiff's Second Set of Interrogatories, Exhibit 3, Letter from Mr. Black to Mr. Glasgow
  10. 1 Annals of Congress 759-760 (Gales & Seaton ed. 1834)
  11. "Footloose in San Francisco", San Francisco Chronicle, 1969
  12. Hudak v. Dorrier, Median App. No. 3010-M, (Medina Cty. 2000)
  13. Robinson v. Martin Chevrolet, Inc., Trumbull App. No. 98-T-0070 (Trumbull Cty. 1999)
  14. Krause v. Albrecht Grocery Store, Cuyahoga App. No. 74468 (Cuyahoga Cty. 1999)
  15. Lovell v. Hawks, Lorain App. No. 99CA007425 (Lorain Cty. 2000)
  16. Buffington v. Harbor Properties Inc., No. 38534-8-I, (Wash.App.Div.1 1997)




TABLE OF AUTHORITIES


CASES

American Motorcycle Association v. Davids, 11 Mich.App. 351, 158 N.W.2d 72 (Mich. App. 1968) 6
Aptheker v. Secretary of State, 378 U.S. 500 (1964) 20
Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972) 21
Baldauf v. Kent State Univ., 49 Ohio App.3d 46, (Franklin Cty. 1988) 9
Beauchamp v. Los Gatos Golf Course, 273 Cal. App. 2d 20, 77 Cal. Rptr. 914 (Cal.App.Dist.1 1969) 12
Bell v. Bd. of Trustees, 34 Ohio St. 2d 70 (Ohio 1973) 29
Best v. Energized Substation Serv. Inc., 88 Ohio App.3d 109, 623 N.E.2d 158 (Lorain Cty. 1993) 11
Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) 21
Bisnett v. Mowder, 560 P.2d 68, 68 (Ariz. 1977) 10
Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 416 N.E.2d 614 (Ohio 1980) 30
Blumberg v. M. & T. Inc., 34 Cal. 2d 226, 209 P.2d 1 (Cal. 1949) 12
Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) 21
Brinkman v. Ross, 68 Ohio St.3d 82 (Ohio 1992) 9
Brown v. McDonald's Corp., 428 So. 2d 560 (La. App. 4 Cir. 1983) 12
Buffington v. Harbor Properties Inc., No. 38534-8-I, 1997.wa.20 (Wash.App.Div.1 1997) 12
Carroll v. Dept. of Admin. Serv., 10 Ohio App. 3d 108, 460 N.E.2d 704 (Franklin Cty. 1983) 34
Castorina v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001) 37
Chambers v. St. Mary's School, 82 Ohio St.3d 563, 697 N.E.2d 198 (Ohio 1998) 31, 32
Christine Burns v. Schnuck Markets, E5> 719 S.W.2d 499 (Mo.App.Div.3 1986) 12
Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970) 21
Curto v. Harper Woods, 954 F.2d 1237 (6th Cir. 1992) 5
Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38 (Ohio 1967) 9
DeWeese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987) 25, 36
Domico v. Rapides Parish School Board, 675 F.2d 100 (5th Cir. 1982) 21
Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995) 8
East Hartford Education Ass'n v. East Hartford Bd. of Educ., 562 F.2d 856 (2d Cir. 1977) 23
Everhardt v. City of New Orleans, 208 So.2d 423 (La. 1968) 6
Felder v. Victory Fitness Ctr., 1998 Ohio App. LEXIS 3328, *1 (Franklin Cty. 1999) 10, 12
Freeman v. Flake, 448 F.2d 258 (10 Cir. 1971) 22
Friedman v. District Court, 611 P.2d 77 (Alaska. 1984) 24
Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971) 21
Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971) 7, 22
Grange Mut. Cas. Co. v. Columbus, 49 Ohio App.3d 50, (Franklin Cty. 1989) 8
Grayned v. City of Rockford, 408 U.S. 104 (1972) 28
Griswold v. Connecticut, 381 U.S. 479 (1965) 19, 22
Hammond v. Moon, 8 Ohio App.3d 66 (Ohio 1982) 11
Hardy v. Jefferson Community College, No. 00-5198 (6th Cir. 2001) 37
Hitch v. Ohio Dept. of Mental Health, 114 Ohio App.3d 229 (Franklin Cty. 1996) 8
Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974) 21
Hudak v. Dorrier E6>, Median App. No. 3010-M, 2000.OH.0048068, http://www.versuslaw.com, (Medina Cty. 2000) 12
In re Pinko, E1> 44 Ohio App.3d 3, 540 N.E.2d 329 (1988) 31
Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970) 22
Jacobs v. Kunes, 541 F.2d 222 (9th Cir. 1976) 23
Jacobson v. Massachusetts, 197 U.S. 11 (1905) 5
Jensen v. Superior Court of San Diego County, 201 Cal. Rptr. 275, 154 Cal. App. 3d 533 (Cal.App.Dist.4 1984) 24
Jones v. Hyatt Corporation of Del., 681 So.2d 381 (La.App.4 Cir. 1995/1996) 12
Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) 21
Kelley v. Johnson, 425 U.S. 238 (1976) 22
Kent v. Dulles, 357 U.S. 116 (1958) 20
Kentucky v. Coffman, 453 S.W.2d (Ky. App. 1970) 6
Kersevich et al. v. Jaffrey District Court, 114 N.H. 790, 330 A.2d 446 (N.H. 1974) 25
King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971) 22
Krause v. Albrecht Grocery Store, Cuyahoga App. No. 74468 (Cuyahoga Cty. 1999) 12
Kreimer v. Bureau of Police, 765 F.Supp 181 (D.N.J. 1991) 13
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992) 3, 13, 37
LaCourse v. Fleitz, 28 Ohio St.3d 209 (Ohio 1986) 9
Lamb v. Redemptorist Father of Georgia, Inc., 142 S.E. 2d 278, 283 (Ga. App. 1965) 10
Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972) 22, 39
Long v. Zopp, 476 F.2d 180 (4th Cir. 1973) 21
Lovell v. Hawks, Lorain App. No. 99CA007425 (Lorain Cty. 2000) 12
Lowman v. Davies, 704 F.2d 1044 (8th Cir. 1983) 23
Lyng v. Int'l Union, United Auto., Aerospace and Agric. Implement Workers of America, UAW, et al., 485 U.S. 360 (1988) 8
Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) 21
Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271 (Ohio 1937) 0 E7>
Melton v. Young, 465 F.2d 1332 (6th Cir. 1972) 37
Menefee v. Queen City Metro, 49 Ohio St.3d 27, 550 N.E.2d 181 (Ohio 1990) 8
Mick v. Sullivan, 476 F.2d 973 (4th Cir. 1973) 21
Midwestern College of Massotherapy v. Ohio Medical Board, 102 Ohio App.3d 17, 656 N.E.2d 963 (Franklin Cty. 1995) 31
Ohio Bureau of Employment Services et al. v. Hodory, 431 U.S. 471 (1977) 8
Oladipupo v. Austin, 104 F.Supp. 2d 626 (W.D. La. 2000) 7
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (Ohio 1985) 9
Peck v. Stone, 32 App.Div.2d 506, 304 NYS 2d 881 (N.Y. App. 1969) 25
Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1978) 23
Plyler v. Doe, 457 U.S. 202 (1982) 8
Pressler v. Calhoun, 1994 Ohio App. LEXIS 4027, *1 (Warren Cty. 1994) 10
Quinn v. Muscare, 425 U.S. 560 (1976) 22
Redman v. Ohio Department of Indus. Rel., 75 Ohio St.3d 399, 662 N.E.2d 352 (Ohio 1996) 34
Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970) 21
Robinson v. Martin Chevrolet, Inc., Trumbull App. No. 98-T-0070 (Trumbull Cty. 1999) 12
Rutan v. Republican Party, 497 U.S. 62 (1990) 23
Sandstrom v. State of Florida, 309 So.2d 17 (Fla. 1976) 24
Schneider v. Ohio Youth Commission, 31 Ohio App.2d 225, 287 N.E.2d 633 (Franklin Cty. 1972) 24, 35
Shapiro v. Johnson, 394 U.S. 618 (1969) 8
Sidle v. Humphrey, 13 Ohio St.2d 45 (Ohio 1968) 9
South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608, 610 (11th Cir. 1984) 27
Sproul v. City of Wooster, 840 F.2d 1267 (6th Cir. 1988) 29
Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985) 39
State ex rel. Colvin v. Lombardi, 241 A.2d 625 (R.I. 1968) 6
State of Ohio v. Williams, 88 Ohio St.3d 513 (Ohio 2000) 20
State v. Betts, 21 Ohio Misc. 175, 252 N.E.2d 866 (Mun. Ct. of Franklin, 1969) 5
State v. Cooper, 120 Ohio App.3d 284 (Franklin Cty. 1997) 29
State v. Craig, 19 Ohio App.2d 29, 249 N.E.2d 75 (Seneca Cty. 1969) 6
State, ex rel. Marshall, v. Civil Service Comm., 11 Ohio App.2d 84, 228 N.E.2d 913 (Franklin Cty. 1967) 35
Stull v. School Board District Board of Education, 459 F.2d 339 (3rd Cir. 1972) 21
Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir. 1995) 5
Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969) 26
Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) 17
Uniroyal Chem. Co. v. Kron, 116 Ohio App.3d 655 (Lake Cty. 1996) 31
United States v. Grayson County State Bank, 656 F.2d 1070 (5th Cir. 1981) 8
Van Der Veer v. Ohio Dept. of Transp., 113 Ohio App.3d 60, (Franklin Cty. 1996) 8
Vasas v. Cuyahoga County Hospital, 1979 Ohio App. LEXIS 9081, *3 (Lorain Cty. 1979) 29
Ward v. Rock Against Racism, 491 U.S. 781, 783 (1989) 15
Zeller v. Donegal School District Board of Education, 517 F.2d 600 (3rd Cir. 1975) 21


STATUTES AND REGULATIONS
36 C.F.R. 504 18
Columbus City Code Title 7 31
O.A.C. Chap. 3701 31
O.R.C. §2315.19 10
O.R.C. §3375.22 32
O.R.C. §3375.40 28, 30, 35
O.R.C. §4511.53 7
O.R.C. Chap. 3701 31
O.R.C. Chap. 3717 31




MEMORANDUM OF LAW