MEMORANDUM OF LAW


I. INTRODUCTION

On November 10, 2000, January 23, 2001, and March 2, 2001, Plaintiff Neinast was prevented from continuing to use the facilities of the Columbus Metropolitan Library (the "Library") to receive First Amendment communications, based upon an "Eviction Procedure" (Exhibit 2 in the Affidavit of Larry D. Black, hereafter "Black Affid.", attached to Defendants' Motion for Summary Judgment as Exhibit A), even though the Patron Regulations (Exhibit H in the Affidavit of Robert A. Neinast, hereafter "Neinast Affid.", attached hereto as Exhibit 1) have no rule prohibiting patrons from using the Library barefoot. During the March 2 visit, Plaintiff was served with a one-day eviction from the Library (Exhibit A in Defendants' Responses to Plaintiff's First Set of Interrogatories, hereafter "Def. Resp. Int. I," attached hereto as Exhibit 6). On April 3, 2001 he filed suit asking for relief from Defendants' policy, and for damages.

Defendants 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 (calling a rule a procedure does not remove the need for following state procedures for rules when it is clear that it is a rule), and enforcing that rule against Plaintiff.

Defendants advance the proposition that the Library's procedure serves two substantial governmental interests: 1) to protect the health and safety of Library patrons, and 2) to protect the fiscal integrity of the Library. As applied to this situation, the eviction procedure not only does not serve any substantial governmental interest, it also does not serve any legitimate governmental interest.

Not only should Defendants not be granted summary judgment, but the condition of the law and the complete lack of evidence favoring Defendants' position dictate that Plaintiff be granted summary judgment for declaratory judgment and injunctive relief.

II. FACTS

Plaintiff Neinast regularly goes barefoot. Neinast Affid. ¶2. Among other reasons, he does so for health, comfort, expressive and spiritual reasons. Amended Complaint, ¶5. Contained within this expressive reason, he seeks to demonstrate the fallacy of the common misconception that it is illegal to use public buildings barefoot. Amended Complaint, ¶6. Neinast Affid. ¶4. The Library has an Eviction Procedure for removing patrons who are not wearing shoes, but there is no corresponding Patron Regulation requiring the same. Black Affid. Exhibit 2. Neinast Affid. Exhibit H. Plaintiff Neinast has used the Library (either the Main library or the Reynoldsburg branch) numerous times barefooted without incident, but on at least two occasions (January 23, 2001 and March 2, 2001), he was required to leave the Library before he finished using the facility for its intended purpose. Amended Complaint, ¶¶9, 10. Neinast Affid. ¶¶14, 15. As part of the March 2 incident, the Library, in the person of Defendant Vonzell Johnson, issued a one-day eviction of Plaintiff Neinast. During the course of this eviction, Plaintiff Neinast attempted to show Defendant Johnson that the Eviction Procedure only allows for a warning and a chance to correct the problem, not a one-day eviction, but Defendant Johnson refused to check the Procedure and continued to have the one-day eviction issued. Amended Complaint, ¶10. Neinast Affid. ¶15. Def. Resp. Int. I, #3, Exhibit A. At no time did Plaintiff Neinast's barefootedness disrupt the Library. Neinast Affid. ¶¶18, 19.

Plaintiff Neinast wrote letters to the Executive Director of the Library, Larry D. Black, and the members of the Board of Trustees, expressing his dissatisfaction with the procedure, his view that there was no proper regulation but that the procedure was nonetheless being enforced, and his concern over the constitutionality of the procedure. Their responses asserted that the Library would continue to enforce the procedure. Amended Complaint, ¶¶19-22. Neinast Affid. ¶¶16, 17, Exhibits I, J, K.

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

A public library is a designated public forum, with the express purpose of receiving speech in the form of books, magazines, and other library materials. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992). Those involved in using the library are engaged in protected First Amendment speech, and regulations limiting that use must meet constitutional muster. In Kreimer, two different standards for determining the validity of regulations regarding patron behavior were explained, depending upon whether the patron was actually involved in receiving speech (using library materials) or not. When a patron is using the library for its intended purpose, restrictions must be in the form of a narrowly tailored rule that serves a significant government interest and leaves open alternative channels of communication (so-called "intermediate scrutiny"). Other rules must be "reasonable".

The Kreimer Court examined a number of library rules under this framework. The Morristown Library's "Rule 5" said:

"Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities . . ." Q>

For this class of rule, in which patrons are not exercising their First Amendment library rights to receive information, the "reasonableness" test applies. Patrons who are annoying others are not receiving information. The Court of Appeals ruled that Rule 5 was a perfectly reasonable thing to require in a library.

The Morristown Library's "Rule 9" said, in part:

"Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building." Q>

For this rule, the stricter constitutional test applies. As the Court of Appeals put it:

"Because this rule would require the expulsion of a patron who might otherwise be peacefully engaged in permissible First Amendment Activities within the purposes for which the Library was opened, such as reading, writing or quiet contemplation, we must determine whether the rule is narrowly tailored to serve a significant government interest and whether it leaves ample alternative channels of communication." Q>

Id. at 1264.

The Court then found that the rule served the Library's significant government interest of allowing patrons to use the library to the maximum extent possible:

"The Library's goal is served by its requirement that its patrons have non-offensive bodily hygiene, as this rule prohibits one patron from unreasonably interfering with other patrons' use and enjoyment of the Library . . ." Q>

It is clear that this higher standard of review also applies to any rule restricting the general appearance of the library's patrons, whether it be large tattoos, green hair, nose studs, or the state of being barefooted, as long as they are using a library for its intended purpose. On each occasion that Plaintiff was told the leave the Library, he was engaged in receiving protected First Amendment speech. Neinast Affid. ¶¶15, 16. Hence this higher standard of review applies.

Defendants put forth the proposition that two significant governmental interests are served by their rule: 1) that their rule protects the health and safety of library patrons by preventing injury to the barefooted patron, and 2) that their rule protects the fiscal integrity of the library. Defendants mischaracterize the scope of these governmental interests.

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

While the government has a valid interest in protecting "the safety and welfare of its citizenry",1  this interest is wholly in protecting the general public at large, not in protecting a citizen from himself. See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (affirming an inoculation program, saying "it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." Q>) (emphasis added). See also Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir. 1995) ("In Square Lake Hills, especially, the court made it clear that plaintiffs' recreational riparian rights were subject to regulation for the protection of `health, safety, and welfare' of the general public." Q>) (emphasis added).

This distinction may be best illustrated by looking at the situation regarding motorcycle helmet laws. In Ohio, before the laws were repealed for adults, there were two cases. In one, the motorcycle helmet law was declared constitutional; in the other, unconstitutional. In State v. Betts, 21 Ohio Misc. 175, 252 N.E.2d 866, 871 (Mun. Ct. of Franklin, 1969), the court said, "A number of courts have held that a state may constitutionally, under its police power, regulate and prescribe the manner in which motorcyclists on the public highways shall protect themselves so as not to endanger other users of the public roads . . ." Q> (emphasis added). The court disagreed with the proffered excuse that the motorcyclist might be struck in the head by a rock:

We see little danger to the traveling public from motorcyclists being "struck on the bare head by an object." The public risk from such a source is, at best, remote. Any legislative inhibition of individual liberty must be supported by facts demonstrating a compelling public need; mere speculation, supposition or incidental public benefits are insufficient. Q>

Id., 252 N.E.2d 866, 871.

In the other Ohio case, State v. Craig, 19 Ohio App.2d 29, 33, 249 N.E.2d 75, 78 (Seneca Cty. 1969), the law was held constitutional not because of the risk to the individual motorcycle rider, but because ". . . a motorcyclist who loses control of his vehicle because he is struck on his bare head by an object, constitutes a hazard to other users of the highway who may be struck by a motorcycle which has gone out of control." Q> This reasoning is repeated throughout the states. See, e.g., American Motorcycle Association v. Davids, 11 Mich.App. 351, 158 N.W.2d 72 (Mich. App. 1968); Everhardt v. City of New Orleans, 208 So.2d 423 (La. 1968). Even when such a law has been upheld with discussion of the danger to the individual, it is in relation to the burden on society as a whole in caring for the massive head injuries that might result. See, e.g., State ex rel. Colvin v. Lombardi, 241 A.2d 625, 626 (R.I. 1968); Kentucky v. Coffman, 453 S.W.2d (Ky. App. 1970). If Defendants wish to claim that a barefoot library patron may be subject to this level of injury, then extensive fact-finding will have to occur, making this inappropriate for summary judgment.

Defendants also cite two other cases in support of their contention. In Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971), a hair-grooming policy for minors in school was upheld with safety addressed ("long-haired students were threatened with physical abuse"). Society has a strong governmental interest in safeguarding its youth since they are presumably not capable of weighing the relevant dangers themselves.2  The other case, Oladipupo v. Austin, 104 F.Supp. 2d 626 (W.D. La. 2000), the only case in which a shoe regulation is advanced as a legitimate governmental interest, involved an immigration detainee. In this case, Oladipupo was not a free man, and the prison had assumed the special duty of ensuring his safety.3  Plaintiff is a free adult citizen. Neither of these situations applies in the instant case.

Defendants have made no claim that Plaintiff's barefootedness impacts the health and safety of other library users, and, indeed, they cannot do so. As the Betts court said, "The legislature cannot, by arbitrary fiat, create a public need when none in fact exists." Betts, 252 N.E.2d 866, 870. Nor can the Library. The Library also cannot claim the sort of significant danger to barefooted patrons that motorcycle riding does to their drivers. Thus, for the instant case, the rule bears no relationship to protecting the health and safety of Library patrons in general, serves no significant governmental interest, and, indeed, serves no legitimate governmental interest.

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

Defendants mischaracterize the nature of the cases in which fiscal integrity is identified as a legitimate governmental interest. In all instances, the governmental interest refers to accounting or actuarial decisions, made by legislatures or other elected bodies, regarding complex social programs such as Social Security, insurance regulations, or the federal tax system.4  In these cases, all based on Shapiro v. Johnson, 394 U.S. 618 (1969), the governmental interest is identified as "legitimate." Q> In the two cases cited by Defendants that have a higher level of interest (Droz v. Commissioner, 48 F.3d 1120, 1124 (9th Cir. 1995) ("compelling" Q>) and United States v. Grayson County State Bank, 656 F.2d 1070, 1074 (5th Cir. 1981) ("substantial" Q>)) the issue was churches claiming exemption from the Social Security program. In Plyler v. Doe, 457 U.S. 202 (1982) the Supreme Court agreed with the District Court ruling that "the State's concern for fiscal integrity was not a compelling state interest," Q> and, in fact, applied the rational basis test to that situation. None of the interests in any of these cases comes even remotely close to the attempted use by Defendants to justify their rule.

Defendants attempt to reduce their tort liability, not by refraining from negligent acts, but by restricting Plaintiff's legitimate right to receive First Amendment speech. Under Ohio tort law, the Library has no duty to "guarantee that [their] facilities will be completely free of hazards created by other patrons, by the staff, or by the facility itself." Defendant's Motion for Summary Judgment, p. 8. It legally owes to its patrons only "a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (Ohio 1985). The duty of ordinary care requires an owner to keep the premises free from dangers not discernible by a reasonably prudent person and to warn invitees of concealed dangers of which the owner knows or should know. Baldauf v. Kent State Univ., 49 Ohio App.3d 46, 48 (Franklin Cty. 1988).5  It is only where the owner is imputed to have superior knowledge that liability will attach, "because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate." LaCourse v. Fleitz, 28 Ohio St.3d 209, 210 (Ohio 1986). A person who voluntarily goes barefoot is expected to appreciate whatever risks (if any) may occur. In an analogous situation, under Ohio law, premises owners are not liable for dangers arising from natural accumulations of snow and ice, Sidle v. Humphrey, 13 Ohio St.2d 45 (Ohio 1968), nor are they under any duty to remove natural accumulations of snow and ice regardless of the dangers they present. See Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38 (Ohio 1967). The rationale underlying these rules is "that everyone is assumed to appreciate the risks associated with natural accumulations of ice and snow and, therefore, everyone is responsible to protect himself or herself against the inherent risks presented by natural accumulations of ice and snow." Brinkman v. Ross, 68 Ohio St.3d 82, 84 (Ohio 1992). A barefooted person is similarly expected to protect himself or herself from inherent risks (if any) of going barefoot. Defendants' liability argument is a smokescreen.

Defendants' own cited cases show the general lack of liability. In the two Ohio cases cited regarding a barefoot injury, Felder v. Victory Fitness Ctr., 1998 Ohio App. LEXIS 3328, *1 (Franklin Cty. 1999) (attached to Defendants' Motion for Summary Judgment as Exhibit B) and Pressler v. Calhoun, 1994 Ohio App. LEXIS 4027, *1 (Warren Cty. 1994) (attached to Defendants' Motion for Summary Judgment as Exhibit C), summary judgments against the persons with the barefoot injuries were upheld. In both these cases, the nature of the hazard was also of a sort that the injury was most likely unrelated to the barefootedness of the injured person (slip-and-fall on wet surface and large metal stake sticking up from the ground, either of which could have caused injury to a shod person). In the other two non-Ohio cases cited, Bisnett v. Mowder, 560 P.2d 68, 68 (Ariz. 1977) and Lamb v. Redemptorist Father of Georgia, Inc., 142 S.E. 2d 278, 283 (Ga. App. 1965), the cases were returned to lower courts. In Bisnett, the issue was whether the homeowners themselves had negligently created a hidden hazard; in Lamb, the owners had actual knowledge of a hazardous condition and did nothing to ameliorate it. Defendants seem to be arguing that they are so regularly negligent in maintaining the Library that it teems with hidden hazards that Library personnel are aware of but unwilling to correct. On the contrary, they seem to be quite diligent. Def. Resp. Int. II, #8.

Even then, if a court somehow did find that the Library had the duty to a barefooted patron to hunt down every little hazard, Ohio also has a comparative negligence statute. O.R.C. §2315.19. The Library would only be liable if they were somehow more than 50% responsible for the barefooted patrons injury. The barefooted patron would "reasonably be expected to protect himself from a risk" he "fully appreciate[s]", would be found more than 50% liable for his own injury, and the Library would own nothing.

In fact, Defendants may have increased their genuine liability by basing their barefoot policy on protecting the safety of their patrons. Normally, the library would owe their patrons only the duty of ordinary care to keep the Library itself safe. However, they have admittedly and voluntarily accepted the additional duty of guaranteeing the safety of their patrons' choice of footwear. Under Ohio law, a business owner is under no obligation to clear ice and snow, but if they do, then they have accepted the additional duty to do it right. "When the owner or the occupier either gratuitously undertakes to remove snow and ice, or contractually obligates itself to do so, as in this case, it must exercise ordinary care to make walkways and parking lots reasonably safe." Q> E4> Hammond v. Moon, 8 Ohio App.3d 66, 68 (Ohio 1982). It is well established that "[w]hen one voluntarily assumes a duty to perform, and another reasonably relies on that assumption, the act must be performed with ordinary care." Best v. Energized Substation Serv. Inc., 88 Ohio App.3d 109, 115, 623 N.E.2d 158, 162 (Lorain Cty. 1993). The Library is under no obligation to accept this additional duty, but by passing judgment on patrons' choice of footwear, they need to exercise ordinary care in selecting which sort of footwear they allow. A high heel injury lawsuit that they otherwise would not be liable for might now incur genuine liability due to this voluntary acceptance of the duty.

Defendants also claim, without providing any evidence, that allowing barefooted patrons would somehow create an increase in unjustified lawsuits,6  and that their barefoot policy will prevent this. They also claim, again without evidence, that "[l]ibrary patrons wearing shoes are less likely to harm themselves than barefoot patrons." Defendants' Motion for Summary Judgment, p. 16. A look at various court cases reveals a plethora of cases in which the choice of shoe is the cause of or blamed for causing an injury.7  The sheer volume of these cases suggests that Defendants might better reduce their exposure to unjustified lawsuits by instead requiring all their patrons to use their facilities barefoot. Regardless, this is a genuine issue of material fact that renders this case unsuitable for summary judgment in Defendants' favor.

On the contrary, there is no evidence that using the Library barefoot presents any hazard at all. Neinast Affid. ¶11. Affidavit of Gregory V. Morgan (hereafter "Morgan Affid.")(attached hereto as Exhibit 2), ¶8.8  In fact, any hazard in the Library hazardous enough to injure a barefooted patron would likely also injure a shod patron. For instance, Defendants rely on Felder v. Victory Fitness Ctr., supra, in which the customer slipped on a wet floor. Such a slip can occur whether shod or barefoot. See, e.g., Buffington v. Harbor Properties Inc., supra. Such a slip may even be less likely barefoot. Neinast Affid. ¶10. Furthermore, the Library's own insurance policy contains no provision requiring that the Library enforce a barefoot policy. Def. Resp. Int. I, #2. If barefoot patrons really increased the liability of the Library, it would certainly be reflected there. No reasonable trier of fact could find such a hazard in the Library, or that they were liable. Hence, even if this were a legitimate government interest as applied (and it is not), summary judgment for Plaintiff is suitable.

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

Defendants have not in any way shown how Plaintiff's conduct is inconsistent with the Library's Designated Purpose. The purpose (providing communications) of the Library has no more relation to whether Plaintiff has shoes on than whether he has a hat on. Receiving communications in a non-disruptive manner is independent of one's mode of dress.

Defendants try to claim that the Kreimer court upheld a barefoot policy. This is a misreading of footnotes 25 and 8. The two opinions in the Kreimer case, Kreimer v. Bureau of Police, 765 F.Supp 181 (D.N.J. 1991) and Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), contain no indication that Mr. Kreimer was ever barefoot in the Morristown Library; therefore the issue was not before the Court of Appeals. In footnote 25, discussing the sort of rule that requires a significant governmental interest and narrow tailoring, the Kreimer court said:

"Finally, we reiterate that the Library is a limited designated public forum. The Library need only permit use of its facilities which is consistent with the intent of the government when opening this forum to the public. Even within the scope of these consistent uses, it seems obvious that the Library may regulate conduct protected under the First Amendment which does not actually disrupt the Library. For example, we do not doubt that a Library may limit the number of books which a patron may borrow from it at any time, even though no request has been made by another patron for the book which the patron at his or her borrowing limit desires to withdraw. Similarly we do not doubt that the Library may limit the length of time during which a book may be borrowed. Indeed, the district court itself implicitly acknowledged this point when it modified its order so that it did not invalidate the rule requiring the wearing of shoes, since it can hardly be imagined that a person simply by being barefoot would disrupt the Library." Q>

Id. at 1263, footnote 25.

When the Kreimer Court says that the district court acknowledges "this point," it is not agreeing that bare feet can necessarily be banned; it is only pointing out that the District Court acknowledged that "the Library may regulate conduct protected under the First Amendment which does not actually disrupt the Library," but only if it is narrowly tailored to serve a significant government interest. Their other two examples in this footnote illustrate this, since limiting the number of books or the length of borrowing directly serves the purpose of the expressive conduct for which the library was formed. It serves the significant government interest of circulating the books and making their First Amendment content available for all users of the library. Regulating a non-disruptive mode of dress does not fall within this, or any other, government interest. And, indeed, the Court did not say that the footwear rule was valid; they instead focused on noting that the District Court acknowledged that "the Library may regulate conduct protected under the First Amendment which does not actually disrupt the Library." But, again, any such rule must serve a significant government interest.

It must be kept in mind that this is mentioned in the footnote only because the District Court, in trying to rescue its original ruling that mentioned footwear (see Id. at 1250, footnote 8), modified that ruling so as not to invalidate the footwear part of "Rule 9". No First Amendment analysis was done.

Finally, note that footnote 25 continues, and ends with

"We further reject the district court's intimation that the rules would prohibit the wearing of an armband for political purposes. It is clear to us that, so long as the patron is engaged in the peaceful and non-disruptive use of the Library, the adornment of an armband is irrelevant." Q>

Similarly, the adornment (or lack thereof) of shoes is also irrelevant so long as a patron is engaged in the peaceful and non-disruptive use of a library.

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

A regulation against a patron involved in receiving First Amendment speech must be narrowly tailored to achieve a significant governmental interest, and must leave open ample alternative channels of protected communication. In Ward v. Rock Against Racism, 491 U.S. 781, 783 (1989) it was explained in the syllabus that "[t]he requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest." Q> Or, as it appears in the opinion itself, "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid . . . ." Q>

Even if Defendant's justifications for their policy are significant (or substantial) governmental interests, their method of addressing those interests is substantially broader than necessary to achieve their ends. Even granting the improbable occurrence of a barefoot injury, such injuries would be few and far between (and likely quite minor), while the barefoot ban is incessant. The Library's interest in safety would be better served by refraining from negligent conduct, and not relying on the common myth that bare feet are inherently dangerous. Their interest in fiscal integrity, assuming that there really are dangers to barefoot patrons, would be better served by posting a sign stating, "Barefoot at your own risk." Admittedly, a time, place, and manner restriction need not be the least-restrictive means of achieving an interest, but in this case the Library's response is completely out of proportion to the extremely small risk of an injury, and the equally small (due to insurance (Def. Resp. Int. II, #7) and the operation of tort law) economic impact.

The irrationality of the Library's barefoot policy is demonstrated by the scope of the Eviction Procedure, which is applied only within the Library building itself, but not on the presumably more dangerous exterior. The signs requiring shoes are only at the entrances to the Library buildings. Neinast Affid. ¶12. When Plaintiff was escorted out of the Library by Chris Taylor, he was escorted to the top of the stairs of the parking garage, which was considered sufficient to satisfy the policy. Neinast Affid. ¶16. Def. Resp. Int. I, Exhibit A, Memo from Chris Taylor to Larry Black. When an Eviction Procedure applies not only inside the Library building, but also outside it, the Eviction Procedure is careful to so specify. See, for instance, a Type 10 Infraction. Black Affid. Exhibit 2. Thus, the barefoot policy applies and is enforced only within Library buildings. Yet, the hazards on Library grounds and outside the Library building might be expected to be more dangerous, any barefoot injury more likely and more severe, and the Library would be equally likely to be sued, and equally liable for any negligence.

Neither the tailoring nor rationality of the barefoot policy support summary judgment in Defendants' favor, but instead support summary judgment in Plaintiff's favor.

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

However, even if the barefoot policy does serve a significant governmental interest (which it does not), or a legitimate governmental interest (which it does not), then there are genuine issues of material fact that have to be adjudicated. Defendants assume, without presenting any evidence to support it, that walking around in bare feet is more dangerous than walking around in shoes. It is not, particularly inside a building. Neinast Affid. ¶9. They assume that slips are more likely in bare feet, even though a barefooted patron would feel a wet surface and compensate, reducing the likelihood of a slip and fall. Neinast Affid. ¶10. They do not consider the effect of high heels, platform shoes, and slick leather soles on slips and falls. They make no attempt to regulate the thickness of their patrons' footwear so as to protect against punctures that might go through thin-soled moccasins, for instance. If this truly is a significant governmental interest (which it is not), Plaintiff ought to be allowed the opportunity to produce expert witness testimony showing that the risks (if any) from going barefoot are more than offset by the decrease in problems caused by wearing shoes, such as hammer toes, bunions, athlete's foot, and fallen arches.

Defendants have also presented no evidence that there actually are dangers lurking in their hallways or that they are regularly negligent, but simply assume it. 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). Defendants have not done so, and cannot do so.

Thus, given Defendants legal position, there are genuine issues of material fact preventing summary judgment in Defendants' favor.

7. Summary Judgment for Plaintiff is Appropriate

All of this supports, however, Plaintiff's motion for summary judgment. Plaintiff is entitled to judgment as a matter of law. Defendants have presented no significant, or even legitimate, governmental interest served by their policy. The policy is not even rational. Other governmental bodies do not ban bare feet. The Smithsonian Institution does not. 36 C.F.R. 504. The United States Capitol Building does not. Neinast Affid. ¶8. Morgan Affid. ¶10. Affidavit of David DiFonzo (hereafter "DiFonzo Affid.", attached hereto as Exhibit 3), ¶8. It is hard to see how these federal bodies would have missed any appropriate legitimate governmental interest in prohibiting bare feet.

There is no evidence that there are or have been hazards for barefooted patrons. Neinast Affid. ¶11. Morgan Affid. ¶8.

Short of extraordinary evidence of negligence on the Library's part, or of genuine hazards on the order of hidden spikes sticking up out of the floor, there are no genuine issues of material fact, making summary judgment for Plaintiff entirely 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

Contrary to Defendants assertion that the right of personal appearance is not a liberty interest protected under the Due Process Clause, the right of personal appearance is a clearly established fundamental right recognized by the Framers of the Bill of Rights and the Courts. Recognition of this right has fallen into six categories: discussion during the House debates over the Bill of Rights; court cases comparing it to the right to travel; court cases addressing hair-length rules for schoolboys; court cases addressing hair-length rules for policemen, firemen, and other state employees; dress-code requirements for attorneys in court; and a court case overturning a city ordinance requiring male joggers to wear shirts.

Courts have been unable to agree whether the right resides in freedom of expression in the First Amendment, in due process in the Fifth and Fourteenth Amendments, or in the unenumerated rights of the Ninth Amendment, including the right of privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)). What is clear, though, is that the right has been recognized, and that it is fundamental.

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

The right of personal appearance has the distinction of being the only unenumerated right specifically mentioned during the ratification hearings in the U. S. House. 1 Annals of Congress 759-760 (Gales & Seaton ed. 1834) (attached as Exhibit 10). During the debates over the First Amendment, the subject of dress came up in the context of the freedom of assembly. Rep. Sedgwick argued that it was unnecessary to include the right of assembly (as being trivially included in the right to free speech), since doing so would only invite scorn from their constituents for including a right so obvious. In doing so, he said:

"[I]f the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed."

(Emphasis added.)

Note that, in discussing the wearing of the hat, this was presented as a right as fundamental as that of speech or assembly, and as an area upon which the government would not consider encroaching.

Rep. Page, in supporting the inclusion of the freedom of assembly, said:

"He supposes it no more essential than whether a man has a right to wear his hat or not; but let me observe to him that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have also been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights."

None of them realized that governments of the future would deign to regulate what a man wore, or maybe the Bill of Rights would have included "a very lengthy enumeration of rights."

At the end of the discussion, and as part of it, Rep. Hartley said "that all the rights and powers that were not given to the Government were retained by the States and the people thereof." The right of personal appearance is clearly a right retained by the people. It may be that "[n]o judge is entitled to interpret an ink blot on the ground that there must be something under it." Robert Bork, The Tempting of America, p. 166. But in this case, the content beneath the ink blot is clearly legible. The right of personal appearance is a fundamental right guaranteed by the Constitution.

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

The right of personal appearance has been discussed by the Supreme Court in the context of the right to travel. In Kent v. Dulles, 357 U.S. 116 (1958) (and quoted approvingly in Aptheker v. Secretary of State, 378 U.S. 500 (1964)), the Supreme Court said:

The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Q>);

(Emphasis added.) So, here, choosing what one wears is considered an even more fundamental right than the right to travel.

The right to travel in Kent and Aptheker requires a strict scrutiny analysis; Ohio Courts also recognize that strict scrutiny applies to the right to travel. State of Ohio v. Williams, 88 Ohio St.3d 513 (Ohio 2000). As a right even more fundamental than the right to travel, restricting the right of personal appearance must also be subject to a high level of scrutiny. Defendants have not shown, and indeed, cannot show, any set of facts satisfying this.

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

Defendants chose the Fifth Circuit to claim that the right of personal appearance is clearly not a fundamental right. They ignore the Circuits in which it is so recognized.

Courts have come up with widely varying rulings regarding the right of schoolboys to wear their hair at any length, one aspect of the liberty of personal appearance. This disparity reflects the natural tension between the right of personal appearance and the strong governmental interest in educating our schoolchildren, and their status as minors. However, in the instant case, Plaintiff is a free adult citizen, and there is no substantial counterbalancing governmental interest. Most of the hair-length cases date from the 1970's. In the Circuit Courts of Appeal, the 1st, 4th, 7th, and 8th Circuits clearly recognize the right, and require the state to satisfy a "substantial burden of justification".9  In the 3rd and 5th Circuits, the liberty interest in one's personal appearance was recognized, but in the public school environment, there had to be a rational basis for any rule. Most of these rules were upheld.10  But note that the 5th overturned personal appearance rules as applied to college students, "Today the court affirms that the adult's constitutional right to wear his hair as he chooses supersedes the State's right to intrude."11  In the 6th, 9th, and 10th Circuits, the Courts found that the states have a compelling interest in educating their students that overrides any right to long hair, and that the privacy concerns of Griswold did not apply.12 

Defendants rely on Domico and Karr in the Fifth Circuit. But they ignore Lansdale from the same Circuit, in which the right of an adult college student to wear his hair as he likes is affirmed. Again, Plaintiff is a free adult citizen.

An interesting point of note is that none of these cases have any record of the discussion about personal appearance in the debates in Congress over the Bill of Rights. Those Courts that recognized the right of personal appearance in the Constitution correctly did so without this powerful evidence. And that evidence of original intent, if introduced, might have changed the results in the other Circuits.

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

There have been two Supreme Court cases on this issue, Kelley v. Johnson, 425 U.S. 238 (1976), and Quinn v. Muscare, 425 U.S. 560 (1976). The first case was for a policeman; the second for a fireman. In both cases, the Supreme Court assumed the right of personal appearance. This Court should do no less. Then, because of the strong governmental interest in maintaining the recognizability and esprit de corps of its own employees, particularly uniformed employees, it employed the rational basis test to decide that Kelley (and Quinn) had not met their burden of showing the lack of a rational connection between the rule and the public safety.

Since Kelley, other cases have upheld the right of the State to regulate the dress of its employees, particularly in a law-enforcement or primary school environment.13  Also note that the hair-length cases in the 6th Circuit all occurred before the assumption in Kelley of a right of personal appearance. Defendants rely on East Hartford Education Ass'n v. East Hartford Bd. of Educ., 562 F.2d 856, 858-59 (2d Cir. 1977) (on rehearing en banc), but fail to mention that the Court specifically qualifies it with, "[t]he [Supreme] Court was careful to distinguish privacy claims made by government employees from those made by members of the public. . . ." Q>

In Justice Scalia's dissent in Rutan v. Republican Party, 497 U.S. 62 (1990), a political patronage case, he argued that the strict scrutiny used by the majority in that case was misplaced:

"The restrictions that the Constitution places upon the government in its capacity as lawmaker, i.e., as the regulator of private conduct, are not the same as the restrictions that it places upon the government in its capacity as employer. We have recognized this in many contexts, with respect to many different constitutional guarantees. Private citizens perhaps cannot be prevented from wearing long hair, but policemen can." Q>

He also makes clear that the lower level of scrutiny, rational basis, is used when government employees are involved, as contrasted to the strict scrutiny that applies for private citizens, which is the case for Plaintiff Neinast:

That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when "the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns]. . . ." When dealing with its own employees, the government may not act in a manner that is "patently arbitrary or discriminatory," but its regulations are valid if they bear a "rational connection" to the governmental end sought to be served. Q>

In the instant case, there is no counter-weighing interest of the Library against an employee of the State. Instead, the Library seeks to impose this dress code against a patron and common citizen. In such a situation, the rational basis test is no longer appropriate as there is nothing to counter-balance against Plaintiff's right of personal appearance.

There is also Ohio law on this matter. In Schneider v. Ohio Youth Commission, 31 Ohio App.2d 225 229, 287 N.E.2d 633, 636 (Franklin Cty. 1972), the Court of Appeals for Franklin County said

"[W]e state that in our view one generally may, within the exercise of his individual rights and while not violating the rights of others, effect such mode of dress or personal grooming, including style of hair, as he so desires." Q>

The Supreme Court has never heard a case specifically on the right of personal appearance for a free adult citizen, due to the extreme paucity of such cases in general. Most governmental officials realize that we have a "Government where none of them were intended to be infringed." Q>

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

Cases along these lines have been heard in State Courts, with decisions going both ways. In Friedman v. District Court, 611 P.2d 77 (Alas. 1984), a contempt order for not wearing a coat and tie in court was upheld, since an attorney is an officer of the court. In Jensen v. Superior Court of San Diego County, 201 Cal. Rptr. 275, 154 Cal. App. 3d 533 (Cal.App.Dist.4 1984), the right to wear a turban in court was upheld, absent a specific showing of disruption. In Sandstrom v. State of Florida, 309 So.2d 17 (Fla. 1976), a contempt order for not wearing a tie in court was upheld, since "membership in the bar is a privilege burdened with conditions." Q> In Peck v. Stone, 32 App.Div.2d 506, 304 NYS 2d 881 (N.Y. App. 1969), however, the order of a judge prohibiting a female from wearing a miniskirt was deemed arbitrary.

Once again, in those cases where the dress regulations were upheld, it was because of the special circumstance and position of the attorneys. In a case involving, instead, defendants, Kersevich et al. v. Jaffrey District Court, 114 N.H. 790, 330 A.2d 446 (N.H. 1974), a contempt citation was overturned: "a district court must exercise care not to impose rigid standards of dress that are not directly related to the needs of judicial administration." Q> Plaintiff is in no special relationship with the Library. His right of personal appearance ought to be unencumbered.

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

The Town of Palm Beach, Florida, passed an ordinance requiring male joggers to wear shirts. In DeWeese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987), the rational basis test was sufficient to overturn the ordinance. As the Court said: "We are satisfied that such intrusions on the liberty interests of citizens at large would not pass constitutional muster, absent identification of some rational basis which has not yet been brought to our attention and which is beyond our present imagination." Q>

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

A liberty interest in one's personal appearance has been shown to be recognized throughout the country. Defendants have tried to manufacture legitimate governmental interests and rationality out of whole cloth. But again, there is no showing of any danger to patrons with bare feet, and no rational connection has been shown between the policy and the claimed interest.

Summary judgment is inappropriate for Defendants and appropriate for Plaintiff.

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

Defendants try to minimize Plaintiff's message by summarizing it as "an assertion that he is barefoot, and that it is not illegal." Instead, Plaintiff's message is that it is a misconception that it is illegal to be barefoot in public buildings. Amended Complaint, ¶6. That this is a common misconception is beyond doubt. Plaintiff was initially denied entrance to the Smithsonian Institution, but then later admitted. Neinast Affid. ¶7. DiFonzo Affid. ¶¶4, 5. Even after an exchange of letters, some Smithsonian personnel continued to perpetuate the myth until corrected (Neinast Affid. ¶7. Morgan Affid. ¶11), needing a letter from their chief counsel to convince them otherwise (Neinast Affid. Exhibit F). Plaintiff was initially denied entrance to the U.S. Capitol. Neinast Affid. ¶8. Morgan Affid. ¶10. DiFonzo Affid. ¶8. Plaintiff has been questioned by employees of Galyans, Krogers, Wal-Mart, Rite-Aid, the Outback Restaurant, and Don Pablos. Neinast Affid. ¶6. Each time, the store employee initially claimed that it was "state law," or "health department rules." McDonald's and CVS Pharmacies even have signs on their doors incorrectly proclaiming that the health department requires shoes. Neinast Affid. Exhibits D and E.

Even the Library itself perpetuated the misconception. When Plaintiff was escorted to the office of Chris Taylor on November 10, 2000, her initial excuse for the barefoot policy was that health codes required it. Neinast Affid. ¶14.

Plaintiff's message is particularized. Even in Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969), the black armbands did not vocalize on their own, even if they did have a peace symbol on them. They also served as a threshold to invite discussion and further particularize the Tinkers' message. The same is true for Plaintiff's message. Plaintiff regularly carries with him (or stores in his car so that he can carry them with him into a store) letters from the State of Ohio Department of Health, the Franklin County Board of Health, and the Columbus Health Department that confirm that there are no regulations requiring shoes in public buildings or restaurants (Neinast Affid. Exhibits A, B, and C).14  As noted above, Plaintiff has been approached by store employees and questioned about his barefootedness, which has given him the opportunity to present the appropriate letter. In the U.S. Capitol, he and others were approached by other tourists asking about their barefootedness. Neinast Affid. ¶8. Morgan Affid. ¶10. DiFonzo Affid. ¶9. Neinast's message is clearly being conveyed, and his being barefoot is an integral component of that conveyance.

In fact, Neinast's message was clearly conveyed to the Library itself. When he was escorted to Chris Taylor's office, he presented her with a copy of the Ohio Department of Health letter, which she then photocopied. Neinast Affid. ¶14. The message was conveyed and understood.

Defendants try to compare Plaintiff's speech to nudity as a message.15  The critical difference is that people correctly understand that nudity is generally illegal; there is no misconception. Furthermore, unlike public nudity, being barefoot has a long tradition in America, from Johnny Appleseed16  to Abraham Lincoln17  to the hippie days of the 1960s.18 

Plaintiff's message remains compatible with the stated purpose of the Library. As stated in Grayned v. City of Rockford, 408 U.S. 104 (1972):

The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable." Although a silent vigil may not unduly interfere with a public library, Brown v.Louisiana, 383 U.S. 131 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest. Q>

Plaintiff's expressive conduct caused no disruption of any kind in the Library. Neinast Affid. ¶¶19, 20. Def. Resp. Int. I, #4. Thus, as a matter of law, Plaintiff's symbolic speech is protected, and summary judgment should be granted, not in Defendants' favor, but in Plaintiff's favor.

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

The Board of Trustees is authorized, under O.R.C. §3375.40(H) to "[m]ake and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, . . .."

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

Defendants claim that the Library has the authority to delegate to its director the ability to create "procedures" for the proper administration of the Library. They have to cast it in this light to hide the fact that the barefoot policy is not a "procedure" but a rule or regulation. It is a set of conditions imposed, not upon the Library or Library personnel, but upon patrons, and has punishments attached for non-compliance. This is not a subdelegation of executive authority, as applied in the two cases cited by Defendants, Bell v. Bd. of Trustees, 34 Ohio St. 2d 70 (Ohio 1973) and Vasas v. Cuyahoga County Hospital, 1979 Ohio App. LEXIS 9081, *3 (Lorain Cty. 1979) (attached to Defendants' Motion for Summary Judgment as Exhibit D), but a subdelegation of legislative authority. In Bell, while it does say that "[i]n the operation of any public administrative body, subdelegation of authority, impliedly or expressly, exists - and must exist to some degree," it goes on to say, "[t]he real issue for decision is at what point delegation must stop and the board itself must act." Q> In State v. Cooper, 120 Ohio App.3d 284 (Franklin Cty. 1997), the Franklin County Court of Appeals distinguished between subdelegation of executive and judicial authority, saying "[b]ecause the exercise of judicial authority calls for a great degree of discretion, whether it be the judicial authority vested in the judiciary or that vested in an administrative agency, the law disfavors its complete subdelegation." Q> The delegation of legislative authority also has narrow limits in Ohio. Sproul v. City of Wooster, 840 F.2d 1267, 1272 (6th Cir. 1988). The Sproul Court says

Even if a broad delegation or abdication of its authority were deemed to have been attempted by the Council under the two ordinances cited (§§ 921.03 and 923.10), we would doubt that such an attempt to delegate away its policymaking responsibilities was effectual under Ohio law. Citing Ohio Rev. Code § 731.47. In City of Stow v. City of Cuyahoga Falls, 7 Ohio App. 3d 108, 454 N.E.2d 561 (1982), the Ohio court, noting Kellogg, supra, held that any conflict concerning the authority of the Mayor versus the authority of the Council with regard to extension of utility service outside the municipal bounds was to be resolved in favor of the Council or legislative body, "which has sole authority to determine policy in this area." 7 Ohio App. 3d at 110. Q>

The Board of Trustees of the Library has been granted no power to delegate its legislative power in this area, and has not effectively done so. The Sproul Court also said

In sum, we conclude that the Ohio Constitution and law support the district court's conclusion that the power to extend water and sewer services outside the Wooster boundaries is legislative and it vests in the Council, not in the City officials upon whose oral commitment Sproul unfortunately relied. We also conclude that this legislative power was not effectually delegated (even if it might lawfully be done) to the Mayor and Director to decide in their discretion whether or not to extend City water and sewer services to Sproul's property outside the City. Q>

Id. at 1273. (Emphasis added.)

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

In Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271, syllabus, paragraph 7 (Ohio 1937), the Ohio Supreme Court held that

As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but, when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety, or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations. Q>

(Emphasis added.)

There are no standards in either the state statute (O.R.C. §3375.40), or in the Library's Patron Regulations (Neinast Affid. Exhibit H). Regarding standards, in Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 260, 416 N.E.2d 614, 618 (Ohio 1980), the Ohio Supreme Court said:

We hold that a statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively. Ordinarily, the establishment of standards can be left to the administrative body or officer if it is reasonable for the General Assembly to defer to the officer's or body's expertise. Q>

The Ohio Legislature has delegated to the Health Department, O.R.C. Chap. 3701, O.R.C. Chap. 3717, the overseeing of the health and safety of Ohioans. They have created no rule requiring citizens to wear shoes in public buildings. O.A.C. Chap. 3701. Neither has the City of Columbus (Columbus City Code Title 7) or the Columbus Health Department (Affidavit of Morgan Condo, ¶3, attached hereto as Exhibit 4). The allowability of the delegation of the legislative function rests upon the presumed expertise of the administrative office. See also Chambers v. St. Mary's School, 82 Ohio St.3d 563, 567, 697 N.E.2d 198, 202 (Ohio 1998) ("Administrative agencies have the technical expertise to compose such rules."Q>); Midwestern College of Massotherapy v. Ohio Medical Board, 102 Ohio App.3d 17, 24, 656 N.E.2d 963, 968 (Franklin Cty. 1995) ("When considering the reasonableness of a rule, deference is given to the agency's expertise in evaluating the reasonableness and lawfulness of the rule."Q>). The Library clearly has no expertise in public health and safety--their expertise is in running a library. Furthermore, the Library's insurance policy, presumably supported by actuaries with expertise in assessing liability risks, contains no provision requiring that the Library enforce a barefoot policy. Def. Resp Int. I, #2. In addition, as noted before, regulation via the police powers is to protect the general public, not a specific individual against himself.

Even if the Board of Trustees did have the power to delegate this legislative, rulemaking function, they have not done so. As stated in Uniroyal Chem. Co. v. Kron, 116 Ohio App.3d 655 (Lake Cty. 1996), and referring to In re Pirko, 44 Ohio App.3d 3, 5-6, 540 N.E.2d 329, 331-332 (1988), "a regulation which purports to empower an administrator to levy a fine must be strictly construed against the state." Q> In Uniroyal, the delegation was not clearly stated and was ruled unlawful.

Defendants' barefoot regulation does not levy a fine, but instead deprives Plaintiff of his First Amendment right to receive information at the Library; a similar strict construction should be used when examining the Board of Trustees' delegation to the Executive Director. One reason for this strict scrutiny is that normally legislators are elected officials, while administrators have little accountability. Chambers v. St. Mary's School, 82 Ohio St.3d 563, 567, 697 N.E.2d 198, 202 (Ohio 1998) ("However, administrative agencies have no accountability as do the members of the General Assembly."Q>). Not only is the Executive Director not elected, neither are the members of the Board of Trustees. O.R.C. §3375.22.

The Library admits that the Patron Regulations have no proscription on bare feet, so no authorization for the barefoot policy flows from there. Answer of Defendants to Plaintiff's Amended Complaint, ¶12.

It is not clear whether the Library claims that the Executive Director gets his authority to create the barefoot regulation through the "determining internal policies and procedures" Q> clause or the "other all other matters involved with the operation of the library system" Q> clause of the Library Organization Policy. Black Affid. Exhibit 1. "All other matters" is too broad a delegation and completely lacking in standards. Regardless, Defendants' Motion for Summary Judgment, p. 11, claims that the "procedure" is part of the "day-to-day business of establishing internal procedures for health and safety." The barefoot policy is neither a procedure nor internal. It is a rule with penalties enforced against patrons. It does not deal with internal employees or their actions, but tells patrons external to Library administration what is and is not allowed. There is no clear delegation of this authority, whether for safety or any other reason.

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

There is a strong possibility that Mr. Black is mistaken in his recollection (Black Affid. ¶¶5, 6) that the barefoot policy was created for health and safety reasons, and for the fiscal integrity of the Library. The Eviction Procedure (Black Affid. Exhibit 2) itself indicates otherwise. The Eviction Procedure is divided into various "Infraction Types," with different infraction having different penalties. The barefoot policy is not contained under any infraction type labeled "Health and Safety." It is instead an Infraction Type 01:

Inappropriate dress, to include but not be limited to: no shirts and no shoes. Presenting offensive and pervasive odor or odors which constitute a nuisance to other customers or staff. Q>:

"No shoes" is juxtaposed with "no shirt", yet (assuming arguendo Defendants' contentions that the policy serves their stated governmental interests) it is extremely difficult to see how a shirtless patron would constitute a danger to himself, or affect the fiscal integrity of the Library. In addition, even in his request to the County Prosecutor, Mr. Black did not ask about safety concerns, but instead asked for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." Q> Defendants' Response to Plaintiff's Second Set of Interrogatories (hereafter "Def. Resp. Int. II"), #13, Letter from Mr. Black to Mr. Glasgow (attached as Exhibit 9). Even if the Board of Trustees had properly delegated authority to the Executive Director to make a health and safety regulation (and they did not), the barefoot policy was clearly promulgated not as a health and safety regulation, but as a dress code.19 

The Board has not only not delegated to the Executive Director the authority to make a dress code, they have no statutory authority to do so, either (absent actual disruption of the Library). A rule that bears no reasonable relation to the legislative purposes of the authorizing statue improperly declares policy. Carroll v. Dept. of Admin. Serv., 10 Ohio App. 3d 108, 110, 460 N.E.2d 704, 706 (Franklin Cty. 1983).

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

The Eviction Procedure (Black Affid. Exhibit 2) clearly states that the appropriate penalty for a Type 01 Infraction is a warning, and the patron is asked to leave the premises to correct the problem. This is the documented procedure for first, second, and third and subsequent violations. Yet, Plaintiff was given a one-day eviction on March 2, 2001. Amended Complaint, ¶14. Answer of Defendants to Amended Complaint, ¶14. Neinast Affid. ¶16. None of the conditions for a one-day eviction specified in the Eviction Procedure were present, yet it was still issued, despite Plaintiff's warning to Mr. Johnson. Neinast Affid. ¶16. There is no language in the Eviction Procedure that allows a one-day eviction for this infraction. Even the minimal due process of the invalid Eviction Procedure was not afforded Plaintiff. Instead, he was deprived of his right to receive speech based upon the "spirit of the procedure." Q> Def. Resp. Int. I, Exhibit A, Memo from Chris Taylor to Larry Black. This sort of unbridled discretion is unsanctioned by the state. See, e.g., Redman v. Ohio Department of Indus. Rel., 75 Ohio St.3d 399, 404, 662 N.E.2d 352, 357 (Ohio 1996) ("The basic purpose of the nondelegation doctrine is to control unbridled agency discretion."Q>); State, ex rel. Marshall, v. Civil Service Comm., 11 Ohio App.2d 84, 94, 228 N.E.2d 913, 922 (Franklin Cty. 1967) ("Rule IV, Section D, above, by which the Personnel Director attempted to exercise unbridled and ungoverned discretion to reject relator's application to engage in the examination for Fire Chief, contrary to Rule VIII, Section B, of the Civil Service Commission, considered as power of a judicial nature, is an illegal delegation thereof, is too broad and indefinite to create any valid standards, and is therefore a nullity."Q>). There is no genuine issue of material fact associated with this denial of due process, Plaintiff is entitled to judgment as a matter of law, and summary judgment is appropriate.

5. Plaintiff Has No Adequate Remedy At Law

After being evicted from the Library, Plaintiff sent a letter to Mr. Black complaining of the one-day eviction, and asking if there were any other avenue that should be addressed to change the footwear policy, and if all administrative remedies had been exhausted. Neinast Affid. Exhibit J. In reply, Mr. Black said, "We will not respond to further correspondence on this matter." Neinast Affid. Exhibit K. Plaintiff has no adequate remedy at law.

Defendants failed to provide due process and deprived Plaintiff of his liberty interest in receiving First Amendment communications under the federal constitution, his liberty interest in personal appearance as guaranteed under the federal constitution, his liberty interest in symbolic expression as guaranteed under the federal constitution, his liberty interest in personal appearance guaranteed by Ohio law (Schneider v. Ohio Youth Commission, 31 Ohio App.2d 225, 287 N.E.2d 633 (Franklin Cty. 1972)), and his property interest in using the Library (O.R.C. §3375.40; Library Mission Statement (Neinast Affid. Exhibit G): "promote lifelong learning among residents of Central Ohio by ensuring access to information"Q>).

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

There are no genuine issues of material fact in this Cause of Action. The law shows that the Board of Trustees have no authority to promulgate such a dress code regulation, and no authority, lacking standards, to delegate this to the Director. The barefoot policy is null and void, and Plaintiff was evicted without due process.

E. THE BAREFOOT POLICY VIOLATES EQUAL PROTECTION

Plaintiff has already shown that the barefoot policy serves no legitimate governmental interest, and that it is not rationally related to either a legitimate government interest in the health and safety of the general public, the fiscal integrity of the Library, or any other interest of the government. See DeWeese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987). In addition, it has been shown that the Library has disclaimed that Plaintiff's barefootedness caused any disruption of the Library. Furthermore, Plaintiff is not a "class of one." He is a member of the Society for Barefoot Living, with more than 800 barefoot members. Neinast Affid. ¶4. Thus, the barefoot policy violates equal protection and summary judgment should be granted to Plaintiff.

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

Contrary to Defendants' assertions, the rights articulated by Plaintiff are clearly established rights.

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

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992) clearly articulates that any regulation relating to a patron actually involved in receiving First Amendment information must be narrowly tailored to serve a significant governmental interest. Defendants have no significant governmental interest, and rely upon mere speculation to manufacture one. A reasonable administrator would realize that fact-finding was necessary. Compare Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), in which the banning of a confederate flag on the T-shirt of a student was upheld after fact-finding showed that it had caused disorder in the school, with Castorina v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001), in which the banning of the confederate flag on the T-shirt of a student was sent back to the District Court for fact-finding because no fact-finding had been done. The Library did no fact-finding regarding their supposed "substantial governmental interest." Def. Resp. Int. II (attached hereto as Exhibit 7), #10. They also fashioned an unconstitutionally broad solution to a non-existent problem.

Defendants attempt to trivialize their violation of Plaintiff's rights by proclaiming "there is no constitutional right to go barefoot in public buildings." The defendants in Hardy v. Jefferson Community College, No. 00-5198 (6th Cir. 8/15/2001) similarly tried to trivialize the speech rights of Hardy by claiming that he "had no constitutional right to use the `N' word." The Court found otherwise, and denied the administrator's qualified immunity. Once the principal of academic free speech was established, there was no need to examine whether each and every word in the dictionary was also allowable. Similarly, with the right of personal appearance established, there is no need to re-examine it for each different mode of appearance, whether it be long-hair, hat, or bare feet.

If Defendant Black were a reasonable administrator, he would be aware of and follow the American Library Association's Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage. Exhibit C of the Affidavit of Judith F. Krug, attached hereto as Exhibit 5. While these are in no way binding on the Columbus Metropolitan Library, they do explain, based upon the ALA's expertise in the area, and their examination of court cases, including Kreimer, that "[l]ibraries are advised to rely upon existing legislation and law enforcement mechanisms as the primary means of controlling behavior that involves public safety . . . ."20  Again, Defendants have not acted as reasonable administrators.

Defendants emphasize that Mr. Black sought an opinion from the Franklin County Prosecutor's office.21  This mischaracterizes the scope of the request. Instead, Mr. Black asked for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." Q> Def. Resp. Int. II, #13, Letter from Mr. Black to Mr. Glasgow (attached as Exhibit 9). Mr. Black was not interested in safety, and Mr. Black was not interested in whether Mr. Neinast's rights were violated. These are not the actions of a reasonable administrator. In addition, although the County Prosecutor responded with an opinion, he was not provided with sufficient information about Mr. Neinast's concerns to generate a well-informed opinion. Plaintiff is not responsible for the quality of the Franklin County Prosecutor's opinion, and the existence of the right to receive communications is independent of that opinion. Defendants have no qualified immunity on this point.

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

The relevant case is from the 5th Circuit. Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972). The 5th Circuit found the right of personal appearance was balanced by school administrators' concerns in secondary school, but that this justification no longer existed at the college level once the students were adults. In addition, the Supreme Court decisions that discuss the issue (Kent, Aptheker, Kelley) put Defendants on notice as to the unconstitutionality of their conduct. In Kelley, the Supreme Court assumed the existence of the right of personal appearance; Defendants ought to have done no less. Defendants are not entitled to qualified immunity on this point.

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

The right to symbolic speech is clearly established by Tinker. Plaintiff's speech was clear and meets the standard of being particularized. Again, a comparison of Merton E2> and Castorina is right on point. Defendants are not entitled to qualified immunity on this point.

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

Even if Defendants are entitled to qualified immunity on the First and Second causes of action, they have made no argument that they are entitled to qualified immunity on the Third cause of action, the procedural due process violation. Depriving a person of a First Amendment right to receive communications in a Library without a validly enacted policy is independent of the contents of that policy. It is clearly established that enforcement of an invalid policy violates the constitution. See Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985). Neither Mr. Black nor Mr. Johnson can claim qualified immunity on this point, and, indeed, have not asked for qualified immunity.

IV. CONCLUSION

Defendants are not entitled to judgment as a matter of law because Plaintiff's claims are well-founded upon the constitutional rights of the First Amendment right to receive communications with minimal governmental interference, the right of personal appearance as first described in the House debates over the Bill of Rights, the right of particularized symbolic speech, the right to the due process of having regulations properly created and delegated, and the right to the due process of having regulations enforced as written. Even if Defendants show that their regulation is narrowly tailored to achieve a significant governmental interest, there remain genuine issues of material fact to show that there really is an issue regarding danger to bare feet, and that this danger is strong enough to meet Defendants' burden in any rational manner. Defendants fail to meet the standards required for summary judgment. Defendants are not entitled to qualified immunity, since the rights violated are well-established and a reasonable Library administrator would be aware of them. Defendants did not even address qualified immunity for their violation of Plaintiff's due process rights. As a result, Plaintiff respectfully requests that this Court deny Defendants' motion for summary judgment and qualified immunity.

On the other hand, Plaintiff has made a strong showing that only matters of law need be considered for his motion for summary judgment. The various implicated rights are well-established and Plaintiff is due judgment as a matter of law. As a result, Plaintiff respectfully requests that this Court grant him 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, 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 17th day of September, 2001.




  ___________________________
Robert A. Neinast




Footnotes:

1. Cited by Defendants from Curto v. Harper Woods, 954 F.2d 1237 (6th Cir. 1992). [Back]

2. Motorcycle helmet laws in Ohio also reflect this: while the law was repealed for adults, it remains in force for minors. O.R.C. §4511.53. [Back]

3. Defendants wisely did not quote the whole supposed rationale for the prison regulation: "The policy is to prevent slips, foot injuries, and the transmission of foot fungus." Q>); It is a genuine material fact that would preclude summary judgment in Defendants’ favor that foot fungi like athlete’s foot need a warm, moist environment, such as the inside of a shoe, to survive and thrive, and that athlete’s foot is virtually unheard of in populations that go barefoot regularly. However, the other two rationales are also without basis, and are dealt with infra. [Back]

4. See, e.g., Grange Mut. Cas. Co. v. Columbus, 49 Ohio App.3d 50, (Franklin Cty. 1989) (barring insurance subrogation claims); Menefee v. Queen City Metro, 49 Ohio St.3d 27, 550 N.E.2d 181 (Ohio 1990) (barring insurance subrogation claims); Hitch v. Ohio Dept. of Mental Health, 114 Ohio App.3d 229 (Franklin Cty. 1996) (prohibits recovery of prejudgment interest in tort claims); Van Der Veer v. Ohio Dept. of Transp., 113 Ohio App.3d 60, (Franklin Cty. 1996) (reduction in payments of collateral benefits); Lyng v. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of America, UAW, et al., 485 U.S. 360 (1988) (barring food stamps for striking workers); Ohio Bureau of Employment Services et al. v. Hodory, 431 U.S. 471 (1977) (barring unemployment benefits when coal mine shut down as result of distant strike). [Back]

5. While these cases refer specifically to the business invitee, this duty applies equally to a licensee, which probably describes the status of a library patron. [Back]

6. Attempting to claim a legitimate governmental interest in preventing unsupported and unjustified lawsuits is utterly unprecedented. [Back]

7. See, e.g., Hudak v. Dorrier E6>, Median App. No. 3010-M, 2000.OH.0048068 <http://www.versuslaw.com> (Medina Cty. 2000) (attached as Exhibit 12) (slip and fall on tile floor wearing golf shoes with spikes); Robinson v. Martin Chevrolet, Inc., Trumbull App. No. 98-T-0070 (Trumbull Cty. 1999) (attached as Exhibit 13) (slip and fall on shoes with one-inch heels); Krause v. Albrecht Grocery Store, Cuyahoga App. No. 74468 (Cuyahoga Cty. 1999) (attached as Exhibit 14) (slip and fall from shoe caught in hole in ground); Lovell v. Hawks, Lorain App. No. 99CA007425 (Lorain Cty. 2000) (attached as Exhibit 15) (fall down stairs when heel of shoe caught in cinder block); Brown v. McDonald's Corp., 428 So. 2d 560 (La. App. 4 Cir. 1983) (slip and fall on platform shoes); Beauchamp v. Los Gatos Golf Course, 273 Cal. App. 2d 20, 77 Cal. Rptr. 914 (Cal.App.Dist.1 1969) (slip and fall on golf spikes); Blumberg v. M. & T. Inc., 34 Cal. 2d 226, 209 P.2d 1 (Cal. 1949) (slip and fall when medium spike heel got caught in cross-hatch of mat); Buffington v. Harbor Properties Inc., No. 38534-8-I, 1997.wa.20 <http://www.versuslaw.com> (Wash.App.Div.1 1997) (attached as Exhibit 16) (slip and fall blamed on slippery-soled shoe: "people do, sometimes, wear slippery-soled shoes" Q>); Christine Burns v. Schnuck Markets, 719 S.W.2d 499 (Mo.App.Div.3 1986) (slip and fall on high heels); Jones v. Hyatt Corporation of Del., 681 So.2d 381 (La.App.4 Cir. 1995/1996) (slip and fall on high heels). [Back]

8. Additionally, the Library has no policy preventing children, or even young children, from crawling on the floor. In response to an interrogatory (Plaintiff’s Second Set of Interrogatories, #9), Defendants responded with their full set of policies that they say addresses the issue: "Patron Regulations Policy," "Security Officer, Role of/Procedure," "Eviction Procedure." Def. Resp. Int. II, #9 (attached hereto as Exhibit 8). These policies contain no such restriction. Yet, children do crawl around on the floors of the Library. Morgan Affid. ¶8. Considering that protecting children is a legitimate governmental interest, if there really were a safety hazard, the Library would have addressed it with a policy. [Back]

9. Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970). See also Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Massie v. Henry, 455 F.2d 779 (4th Cir. 1972); Long v. Zopp, 476 F.2d 180 (4th Cir. 1973); Mick v. Sullivan, 476 F.2d 973 (4th Cir. 1973); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969); Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972); Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974); Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971). [Back]

10. A hair-length rule was overturned in Stull v. School Board District Board of Education, 459 F.2d 339 (3rd Cir. 1972). Sufficient rationale for a rule directed to schoolchildren was found in Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971); Zeller v. Donegal School District Board of Education, 517 F.2d 600 (3rd Cir. 1975); Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972); Domico v. Rapides Parish School Board, 675 F.2d 100 (5th Cir. 1982). [Back]

11. Lansdale v. Tyler Junior College, 470 F.2d 659, 663 (5th Cir. 1972). [Back]

12. Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970); Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971); King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971); Freeman v. Flake, 448 F.2d 258 (10 Cir. 1971). [Back]

13. Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1978) (school bus driver); Lowman v. Davies, 704 F.2d 1044 (8th Cir. 1983) (park employee with law enforcement duties); Jacobs v. Kunes, 541 F.2d 222 (9th Cir. 1976) (employees in a county assessor’s office); East Hartford Education Ass’n v. East Hartford Bd. of Educ., 562 F.2d 856 (2d Cir. 1977) (on rehearing en banc) (7-7-1 decision; E3> teacher required to wear a tie). [Back]

14. When traveling, Plaintiff is careful to print out copies of similar letters for the states he will be traveling in. These letters are available at the website <http://www.barefooters.org>. Neinast Affid. ¶4. [Back]

15. Referencing South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608, 610 (11th Cir. 1984). [Back]

16. See, e.g., http://www.dnr.state.oh.us/odnr/parks/magazine/fallwin2000/appleseed.htm on the State of Ohio website. [Back]

17. Sandburg, Carl, "Abraham Lincoln, The Prairie Years - I," Charles Scribner’s Sons, New York, 1947, p. 49. [Back]

18. "Footloose in San Francisco," San Francisco Chronicle, April 3, 1969 (Neinast Affid. Exhibit 11). [Back]

19. It is unclear why Mr. Black is so opposed to barefooted patrons that he feels they must be controlled with a dress code. A barefooted patron exposes to public view no more of the foot than various (acceptable) sandals. In fact, the only feature that must be covered to satisfy the policy is the sole, which is not visible for a standing or walking patron, being in contact with or facing the floor. [Back]

20. It is clear that the Columbus Metropolitan Library recognizes the expertise and importance of the American Library Association. Although Mr. Black is not a member, all seven Trustees of the Board are, and even Mr. Black (along with some Trustees) has attended ALA conventions. Def. Resp. Int. II, #12. [Back]

21. Mr. Black was originally informed about the constitutional problems of the policy in 1997, but chose to do nothing about it. Morgan Affid. ¶12. [Back]