General Manager,

CASE NO. 09-CV-01-1082

Judge J. Lynch

FEBRUARY 20, 2009

I. Introduction

Defendants the Ohio Expositions Commission and Virgil Strickler, General Manager, ("Expo") seek to have Robert A. Neinast's complaint against them dismissed under Civ. R. 12(B). Neinast is attempting to invalidate Expo's rule requiring that shoes be worn at the Ohio State Fair as a violation of his personal liberty and on the theory that the shoe rule has not been legitimately created.

Expo says that it is "in essence arguing for dismissal pursuant to the doctrines of res judicata and or collateral estoppel." (Motion to Dismiss, p. 2.) Expo's argument is in error. First, both res judicata ("claim preclusion") and collateral estoppel ("issue preclusion") require that the same parties, or their privies, be involved. Expo and the Columbus Metropolitan Library are clearly not in privity. Second, Expo is also in error when it argues that the decisions in the Library lawsuits are binding precedent. There are different issues involved, since the statutes authorizing the Library and the Expo contain quite different language. Analysis of statutes requires actually looking at the appropriate statute. For instance, libraries are clearly granted a rulemaking power; Expo is not. Compare O.R.C. § 3375.40(H) with O.R.C. § 991.03(A). Also, none of the Library lawsuits examined a shoe rule under the personal liberty clauses of the Ohio Constitution, Sections 1 and 2, Article I.1  In addition, the test for the constitutionality of regulations that violate personal liberty is different under the Ohio Constitution than under the U.S. Constitution; no lawsuit has tested a shoe rule under the Ohio Constitution.

Expo confuses just what a "rule" is, statutorily, when it says, "Defendants were unable to locate any resolution by which [the shoe rule] was formally adopted by the Expo Commission, just as there is no formal resolution, for example, of a rule directing the General Manager to retain sanitation services for use during the Fair." (Motion to Dismiss, pp. 3-4.) The former meets the statutory definition of a rule, O.R.C. § 111.15(A); the latter does not. Expo has been granted the power to conduct a Fair, not to make police power regulations, and since Expo claims the rule is for "safety," a police power regulation is exactly what it is. There is a large and critical difference between Expo conducting the Fair in a safe manner (providing such services as trash pickup and an orderly management of the exhibitor booths) and creating police power regulations. The former is authorized; the latter is not. Expo can no more create a police power regulation requiring shoes than it can create a police power regulation requiring that all attendees provide proof of vaccination before entering.

Expo is concerned that Neinast is on a barefoot crusade. The law does not care whether Neinast is on a crusade or not. If the rule is invalid because it was not properly created, whether Neinast is on a crusade or not is irrelevant. If the rule unconstitutionally invades Neinast's personal liberty, it does not matter whether he is on a crusade or not. Fighting for civil rights and fighting to limit governmental intrusions in our lives have distinguished pedigrees. For instance, women fought a long crusade before courts finally threw off the courts' preconceptions and casual acceptance of myth.2  Of course, Neinast's concerns do not rise to the level of those earlier civil rights movements, but it is not a waste of this Court's time to carefully examine, not only the myth that bare feet are inherently dangerous, but to examine the further encroachment of the nanny state. It is not a waste of this Court's time to ensure that Expo comports with Ohio constitutional and state law. Neinast has regularly attended the Ohio State Fair barefoot over the past 11 years without any of the Fair's fears being realized. If the shoe rule were removed for being invalid, not only would personal freedom increase, but the Fair would continue to notice not a whit of difference. In that case, why is Expo wasting this court's resources by fighting to keep such an invalid and unnecessary rule that makes no difference to them?

Finally, Plaintiff can prove facts to support his claims. Those facts will be described below.

II. Standard of Review

Expo's explanation of the standard of review for a Civ. R. 12(B) motion omitted some important points. A good summary of the standard of review such a motion is given in footnote 2 of State ex rel. Midwest Pride v. Pontious (1996), 75 Ohio St.3d 565, 569-570:

Under Civ.R. 12(B)(6), a complaint may be dismissed only if the court (1) accepts all factual allegations as true, (2) draws all reasonable inferences in favor of the nonmoving party, and (3) still concludes beyond doubt from the complaint that no provable set of facts warrants relief.

(Emphasis added.)

III. Argument

A. The Affirmative Defenses of Res Judicata and Collateral Estoppel are Not Properly Raised in a Civ. R. 12(B)(6) Motion.

Expo's motion to dismiss rests upon Civ. R. 12(B)(6), and Expo says that it is "in essence arguing for dismissal pursuant to the doctrines of res judicata and or collateral estoppel." (Motion to Dismiss, pp. 1, 2.) "The affirmative defense of res judicata is not properly raised in a Civ.R. 12(B)(6) motion because it requires reference to materials outside the complaint (i.e., the previous action upon which the defense is based) and, therefore, is a matter which should be raised on summary judgment." Estate of Sherman v. Millhon (10th Dist. 1995), 104 Ohio App.3d 614, 618, quoting Nelson v. Pleasant (4th Dist. 1991), 713 Ohio App.3d 479, 482. Expo's motion to dismiss must be denied on these grounds alone.

B. Neinast's Claims are Barred by Neither Res Judicata Nor Collateral Estoppel, and the Previous Decisions Regarding the Columbus Metropolitan Library are not Binding in this Case

Expo's contention that res judicata or collateral estoppel applies to this case is patently ridiculous. The Ohio Supreme Court has explained when those two doctrines apply in O'Nesti v. DeBartolo Realty Corp. (2007), 2007-Ohio-1102, 113 Ohio St.3d 59 at ¶¶6, 7:

The doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also known as collateral estoppel. Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action. Where a claim could have been litigated in the previous suit, claim preclusion also bars subsequent actions on that matter.

Issue preclusion, on the other hand, serves to prevent relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action between the same parties or their privies.

(Emphasis added. Internal citations removed.) Expo is clearly a different party than the Columbus Metropolitan Library. Furthermore, Expo has not presented anything that even suggests that the Columbus Metropolitan Library might be in privity with Expo. Of course, they are not: Expo is an agency of the state; the Library is a completely separate corporate political subdivision.

Regarding the question of law as to whether there is binding precedent for this case, again, a Civ. R. 12(B)(6) motion is an inappropriate vehicle. "[T]he standards for Civ. R. 12(B)(6) and (C) motions are similar, but Civ.R. 12(C) motions are specifically for resolving questions of law." Midwest Pride, supra. Yet again, Expo wants to look beyond the pleadings at the Library lawsuits. Yet again, Expo's motion to dismiss must be denied on these grounds.

The previous lawsuits regarding the Columbus Metropolitan Library are also not binding precedent. First, precedents of lower federal courts are probably not binding on Ohio state courts:

We therefore conclude that we are not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court. We will, however, accord those decisions some persuasive weight.

State v. Burnett (2001), 2001-Ohio-1581, 93 Ohio St.3d 419, 424.3 

Regardless, there is nothing in the federal Library lawsuit that might be binding on this court for the instant case. Despite Expo's claim that, "Implicit in this holding by the United States Court of Appeals was recognition that a shoe requirement fits within statutory authority given the Library under Ohio law" (Motion to Dismiss, p. 8), the Sixth Circuit Court of Appeals specifically refused to consider the question of the validity of the shoe rule under state law:

Neinast concedes that the Board's delegation of authority to Black "regarding internal polices and procedures" was proper, but argues that Black "was not granted the authority to create and enforce an external regulation." Neinast's claim turns upon a question of state law — namely, the amount of rulemaking authority the Board properly can delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983.4 

Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, 597. Nor does the personal liberty component of Neinast's federal lawsuit provide precedent binding on this court for the instant case. That was a challenge based upon the U. S. Constitution, and the rational basis test applied. The personal liberty claim in the instant lawsuit is based on the Ohio Constitution, which is acknowledged to "confer[] greater rights than are conferred by the United States Constitution." Preterm Columbus v. Voinovich (10th Dist. 1993) 89 Ohio App.3d 684, 691. In addition, the standard for determining constitutionality of a police power regulation under the Ohio Constitution is not the rational basis test, but "[t]o be a valid police regulation it must have a clear and substantial relation to a proper object of the police power, and must not be arbitrary, discriminatory, capricious or unreasonable and must bear real and substantial relation to the subject sought to be obtained, namely, the health, safety, morals, or general welfare of the public." Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389, 397.

There is nothing binding on this court for the instant case from Neinast's state Library lawsuit, either. First, this case challenges the validity of the shoe rule based upon Expo not following the proper rulemaking procedure; there is no way the Library case can weigh in on this issue. Second, this case challenges the authority of Expo to create and enforce their shoe rule based upon their own, specific statutory authorizing language: O.R.C. §§ 991.01, 991.02, and 991.03. This language is quite different than the statutory language that authorizes libraries. The analysis from the Library lawsuit might somehow be considered suggestive, but it cannot be considered binding at all.

Finally, the state Library lawsuit contained no challenge based upon personal liberty, since res judicata barred Neinast from doing so. Thus, there is no precedent from the earlier Library lawsuits binding on the instant case.

C. The Fact that the Shoe Rule Was Not Adopted in an Open Meeting of the Ohio Expositions Commission Warrants Relief

Expo must show beyond doubt that no provable set of facts warrants relief yet, in their motion, they provide a fact that is fatal to that motion and their defense. Expo admits that "Defendants were unable to locate any resolution by which [the shoe rule] was formally adopted by the Expo Commission." (Motion to Dismiss, p. 3.) However, O.R.C. § 121.22(H) requires

A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.

Since O.R.C. § 991.02(F) requires that Expo keep a record of all of its proceedings, the lack of such a record is sufficient to prove that the shoe rule was never adopted in an open meeting of the Expo, and the shoe rule is hence invalid. See also, State ex rel Long v. Council of the Village of Cardington (2001), 2001-Ohio-130, 92 Ohio St.3d 54, for a discussion of the interaction between the Sunshine Law, O.R.C. § 121.22, and recordkeeping requirements.

Since just this one fact warrants relief for Neinast, Expo's motion must be denied.

D. The Fact that Section 111.15 of the Ohio Revised Code Was Not Followed in the Adoption of the Shoe Rule Warrants Relief

Expo has conceded that the shoe rule is a "rule", saying "[The Ohio Expositions Commission] may enter into contracts, grant leases, and adopt necessary rules and regulations to assist in its conduct of the Fair," and that it has "informed Plaintiff Neinast that applicable rules of patron conduct require him to wear shoes as a condition for admission to the fair." Yet, Section 111.15 of the Ohio Revised Code requires that any rule, defined as "any rule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency" must go through a specific process, including being filed with the Secretary of State, being reviewed by the Joint Committee on Agency Rule Review, and being published in the Ohio Administrative Code before it becomes effective.5  One of the primary purposes of this process is

to provide JCARR with an opportunity to review the substantive portions of new rules to determine whether the rules exceed the scope of the adopting agency's authority, conflict with other rules, or conflict with the legislative intent of the statute pursuant to which the rules are being adopted. R.C. 119.03(I)(1).

B&T Express, Inc. v. Public Utilities Commission of Ohio (1st Dist. 2001), 145 Ohio App.3d 656, 665. Expo has done none of this with its shoe rule; there is no such rule published in the O.A.C. Therefore, the shoe rule has never become effective. It is invalid and void.

This fact also warrants relief for Neinast. Expo's motion must be denied.

E. Expo Has Not Been Granted the Authority to Make Police Power Regulations Such As the Shoe Rule

Expo has presented the shoe rule as a police power regulation, for the police power "is universally conceded to include everything essential to the public safety, health, and morals . . .," Lawton v. Steele (1894), 152 U.S. 133, 136, and it has stated that the shoe rule is one of the "conditions for admission for the safety of our guests while visiting the facility." (Motion to Dismiss, p. 4, quoting Mr. Strickler's letter to Neinast. Emphasis added.)

There are three things wrong with Expo's contention that they are authorized to make the shoe rule: 1) what they call an authorization to "operate the Fair in a clean, safe and efficient manner for the benefit and enjoyment of attendees of the Ohio State Fair," refers merely to management of the property, that is, Expo is authorized to remove hazards, provide sanitation services, and the like, not to promulgate police power regulations; 2) Expo has nowhere been delegated by the General Assembly the authority to make police power regulations; and 3) even if it had been so delegated, the shoe rule itself falls outside of the scope of the police power.

As it points out, Expo has been granted the power to conduct a Fair "consistent with the general welfare and interests of the people of the state, and includes such services as are necessary for the care and comfort or amusement of the public." O.R.C. §§ 991.03(A)(1), 991.01(A). This clearly directs them not to endanger the people of the state while conducting their Fair, but it takes a very creative reading to suggest that it is an authorization for police power regulations. It is instead a call to provide exhibitions and entertainment, and to provide the amenities to allow that public to enjoy the Fair without fear of injury.6 

"Under Section 1, Article II of the Ohio Constitution, and with the exception of the municipal Home Rule Amendment contained in Section 3, Article XVIII of the Ohio Constitution, the police power of this state is entrusted to the Ohio General Assembly." Holiday Homes, Inc. v. Butler Cty. Bd. of Zoning Appeals (12th Dist. 1987), 35 Ohio App.3d 161, 165. (Emphasis added.) See also Tuber v. Perkins (1966), 6 Ohio St.2d 155, 157 ("[A] delegation of police power [can] be exercised only by legislative action.") Not only that, "[t]he legislative power of the state is vested in the General Assembly by Section 1, Article II of the Ohio Constitution, and it may not transfer these vested legislative functions unless it has provided sufficient standards within which a board or administrative agency may make subordinate rules." State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 535. Examining the statutes relevant to Expo, an agency of the state, we not only see no standards at all, we do not see any delegation, and we do not see an authorization to make rules at all, let alone police power regulations. Expo has not been delegated the power to make police power regulations.

The General Assembly enacted the rulemaking statutes in Section 111.15 and Chapter 119 and created JCARR specifically to ensure that agencies do not exceed their authority. Expo, despite acknowledging creating and enforcing its shoe rule, has not followed the statutorily required rulemaking process. Instead, it tries to circumvent that process by, at times, calling the shoe rule a "Condition for Admission," or a contractual issue. This is an interesting strategy that other state agencies or bodies might try implementing when they wish to unconstitutionally evade legislative scrutiny: When the Toledo Board of Health tried to exceed its authority by creating a smoking ban in public areas, see D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, was its mistake that it did not call its regulation a "Condition for Operation" for getting a Health Department inspection certificate? Clearly not. No matter what Expo calls it, the shoe rule is without a doubt an attempt at a police power regulation, and promulgating it is subject to all constitutional and legislative safeguards. Regarding contracts, Expo is authorized to make contracts to engage exhibitors, entertainers, and maintain or manage their property, not to circumvent constitutional and legislative safeguards. Regardless, the back of a State Fair ticket contains no language requiring shoes,7  and any effort to change that with a sign at the entrance is invalid as a unilateral modification to a contract. The exact contents of the back of a State Fair ticket is of course a material fact that precludes a Civ. R. 12(B) motion for dismissal.

As a purported police power regulation, the shoe rule must not be arbitrary, capricious, or unreasonable. Neinast's letter to Mr. Strickler (referred to in Expo's Motion to Dismiss, p. 4) contained numerous citations to the scientific literature, and detailed exactly how the shoe rule was arbitrary, capricious, and unreasonable. That letter and the scientific literature contain provable facts that would provide Neinast relief. In addition, Neinast can show that shoe rules such as Expo's were created by stores in the 1970s to keep out hippies, not because of any fears about barefoot injuries. These rules have been perpetuated by myth, not fact. Expo's motions must be denied, for such facts provide Neinast relief.

Finally, the shoe rule falls outside the scope of the police power, and is therefore an unconstitutional infringement on Neinast's personal liberty. The police power encompasses protecting "the health, safety, morals or general welfare of society as a whole." City of Cincinnati v. Correll (1943), 141 Ohio St. 535, 538. (Emphasis added.) It does not include the nanny state ideal of protecting each and every person from their own actions that others might consider folly, unless those actions "have foreseeable consequences of causing harm to others."8  Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 46. As the Ohio Supreme Court put it in Steele v. Hamilton County Community Mental Health Board (2000), 90 Ohio St.3d 176, 181, "Our belief in the principle that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,' is reflected in our decisions." (Internal citation removed.) Neinast has decided that, as part of what shall be done with his own body, he does not wish to wear shoes. That is his right, and it is protected by the Ohio Constitution.

This entire section has been an argument of law, and has highlighted facts associated with that law. Again, a Civ. R. 12(B) motion to dismiss is the wrong vehicle to decide questions of law. Expo's motion must be denied.

F. In the Absence of an Injunction, Neinast will Suffer Irreparable Harm

In paragraph 14 of his complaint, Neinast alleges that he is "under continuing threat of ejection or prosecution." When he was escorted off the Fairgrounds, he was warned by Lt. Rine of the State Highway patrol that he would be arrested for criminal trespass if he returned again barefoot. One of the other troopers wanted to arrest Neinast right then and there, but was dissuaded by the other troopers.9 

In addition, just before being escorted out, Neinast went to the main office of the Ohio State Fair to enquire about the enforcement of the shoe rule. Kathy Ann Spawl, saying that she was conveying a message from Richard Jones, Assistant Attorney General, said

That is our rule. If you are (let me finish this, ok?). He [Richard Jones] said, if you are arguing this rule, that is something you can file in court, but he's not talking to you about it now, in this lobby. So he said, take it to court, but we will enforce it.

Expo plans to continue to enforce its rule. Neinast plans to return to the Fair in his normal mode of dress, barefooted. Being arrested for ignoring an invalid rule or exercising a personal liberty is an irreparable harm. This threat is a provable fact that warrants relief for Neinast on this issue. The motion to dismiss must be denied.

G. Neinast Deliberately Did Not Ask for Monetary Damages

Neinast is well aware of the function of the Court of Claims, as is this Court. Nonetheless, as an unschooled pro se litigant, he is aware that there may be other remedies he may not know about. Hence, he asks for "any other legal and equitable relief to which he is entitled." No more, no less.

IV. Conclusion

To summarize, Expo was required to show that, beyond doubt, no provable facts warrant relief for Neinast. Instead, Neinast has shown those facts exist, and that he is extremely likely to prevail upon his claims.

For these reasons, and for all of the foregoing reasons, Expo's motion to dismiss must be denied.

  Respectfully submitted,
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601


I hereby certify that a copy of the foregoing was served, by regular U.S. mail, upon Richard M. Jones, Assistant Attorney General, 30 East Broad Street, 26th Floor, Columbus, OH, 43215-3428, this 3rd day of March, 2009.

Robert A. Neinast


1. The Federal library lawsuit addressed only the constitutionality of the shoe rule under the U. S. Constitution. A similar examination under the Ohio Constitution in the state lawsuit was barred by res judicata. Thus, that issue has not been addressed by any court, and therefore, there cannot be any binding precedent. [Back]

2. See, e.g., Bradwell v. Illinois, 83 U.S. 130 (1873), in which a concurring opinion justified the decision to prohibit women from being lawyers with the observation, “Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” Expo’s shoe rule is based upon unexamined myth just as much as Bradwell was based on unexamined myth. Neinast has the facts to properly examine that myth. [Back]

3. The discussion in Burnett leaves open the question as to whether lower state courts are bound by decisions of lower federal courts regarding federal law. Note, however, that Burnett addressed the interpretation of the U. S. Constitution, not the interpretation of the Ohio Constitution as is present in the instant case. [Back]

4. Note that, when Neinast filed his state lawsuit against the Library to have this issue addressed, the Board, recognizing that they were not allowed to delegate such authority to their Director, immediately passed an official shoe rule. This resulted in Neinast’s amended complaint to have the court properly address that new situation. [Back]

5. An internal management rule, such as Expo's "rule" allowing the General Manager to obtain sanitation services, is exempt from this requirement under § 111.15(D)(4). [Back]

6. And, in fact, they have done so. The hazards to barefooted patrons at the Fair are demonstrably on a par with the hazards to shod patrons. This is another provable fact that demands that Expo’s motion be denied. [Back]

7. As per Neinast’s recollection. Discovery would confirm or rebut this. [Back]

8. Thus, smoking bans are predicated on the dangers of secondhand smoke, which cause harm to others, rather than on protecting the smoker from himself. Also, note that in the Library lawsuits there was never any hint of evidence that Neinast's bare feet were a danger to others. [Back]

9. Yes, Expo thought it would take the efforts of three troopers to properly escort a well-behaved barefooted patron off the Fairgrounds. [Back]