IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION

ROBERT A. NEINAST Plaintiff, v. OHIO EXPOSITIONS COMMISSION and VIRGIL L. STRICKLER,    General Manager, Defendants.

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CASE NO. 09-CV-01-1082 Judge J. Lynch

REPLY MEMORANDUM OF DEFENDANTS
OHIO EXPOSITION COMMISSION
AND VIRGIL STRICKLER IN SUPPORT OF THEIR
MOTION TO DISMISS THE COMPLAINT FILED JANUARY 23, 2009

I. INTRODUCTION

In his opposition memorandum, Plaintiff either misses the mark of, or fails to overcome, Defendants' arguments. Because there are no set of facts in support of Plaintiff Neinast's claims which would entitle hime ot relief, the Court should dismiss Plaintiff's Complaint pursuant to Civil Rules 12(B)(1) and (6).

II. ARGUMENT

A. Defendant Expo's rule requiring the wearing of shoes while attending the Ohio State Fair was validly created pursuant to statutory authority.

This is the only issue to be decided in this case. Apart from the difference in statutory wording, there is no meaningful distinction to make between Plaintiff's purported "right" to go barefoot at the Ohio State Fair and his unsuccessful previous litigation claiming the same "right" to go barefoot at the library.

As previously noted, the Complaint in this case frames the issue presented as a challenge to Defendant Expo's authority under statute to make and enforce a "shoe rule". It is the exact same issue decided against Plaintiff in his previous case in this Court against Columbus Metropolitan Library. Moreover, that previous case does indeed constitute binding precedent whether Plaintiff likes it or not.

More specifically, in that aforementioned "Library case", the court analyzed the relevant language in R.C. 3375.40 to determine if the Library had exceeded its statutory authority in creating and enforcing its "shoe rule". In conclusion, the Ohio Court of Appeals for the Tenth Appellate District, Neinast v. Bd. of Trustees of the Columbus Metro. Library 165 Ohio App. 3d 211; 2006 Ohio 287; 845 N.E.2d 570; 2006 Ohio App. LEXIS 224, held as follows:

Notwithstanding plaintiffs contentions to the contrary, we conclude that, under former R.C. 3375.40(H), the board of trustees had authority to promulgate and enforce a rule that requires footwear to be worn in the library. Former R.C. 3375.40(H), among other things, established an intelligible principle that expressly empowered the board to make and publish rules for the "proper operation and management" of the public library under its jurisdiction. The board's adoption of a code of conduct for patrons, which includes a footwear requirement for library patrons, directly concerns the proper operation and management of the public library under the board's jurisdiction and, therefore, bears a reasonable relation to the legislative purpose of former R.C. 3375.40(11). Indeed, in Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, 593-594, the United States Court of Appeals for the Sixth Circuit found that protecting the safety of barefoot library patrons from documented hazards within the library and preserving the economic well-being of the library by averting potential claims by barefoot patrons who may be injured on library premises qualified as significant governmental interests.

Id. at 573-574.

Plaintiff is correct in pointing out that Expo's authority stems from a different statutory scheme, a fact that is true for virtually every state entity. Naturally, that may call for an independent statutory interpretation and analysis, but, as demonstrated by Plaintiff's Complaint, there are no new factual matters to consider in this analysis. In short, as stated before, the only question in this case is whether this court arrives at the same conclusion as it did before in the "Library case" when analyzing the plain language of Expo's relevant statutory authority.

The Ohio Expositions Commission was created by statute for the purpose, essentially, of conducting the annual Ohio State Fair. In that capacity, it may enter into contracts, grant leases, and adopt necessary rules and regulations to assist in its conduct of the Fair. See, International Society for Krishna Consciousness v. Evans, 440 F. Supp. 414, 418, (S.D.Ohio 1977). See also, Abt v. Ohio Expositions Comm. (1996), 110 Ohio App. 3d 696, 675 N.E. 2d 43 (1996 Opinions 1706) ("The commission is an entity created by statute wholly separate and apart from the Ohio Department of Agriculture and is not subject to the Department of Agriculture. Likewise, the Ohio Department of Agriculture has no statutory authority over management of the Ohio State Fair which is the commission's primary responsibility".); 1988 Ohio Op. Atty Gen. 151; 1988 Ohio Op. Atty Gen. No. 34; 1988 Ohio AG LEXIS 34 ("R.C. 991.02-08 authorize the establishment of an Ohio Expositions Commission for the administration and governance of the Ohio State Fair".).

The Krishna Consciousness case cited above is of particular relevance to the instant case. In Krishna Consciousness, the court had to interpret Expo's statutes to determine if Expo had authority to invoke and enforce a "no roving solicitation" rule during the Fair even though the Expositions Commission itself had not formally adopted it. The court held as follows:

The first issue is one of procedural due process. Plaintiffs correctly point out that the regulations promulgated by the Department of Agriculture apply by their terms to county and independent agricultural societies and not to the Ohio Expositions Commission or the Ohio State Fair. Compare Ohio Rev. Code §§ 1711.01, 1711.02, 1711.11 (Page 1964 and 1976 Supp.) with Ohio Rev. Code §§ 991.01, 991.03 (Page 1968 and 1976 Supp.). See also Department of Agriculture Reg. 901-5-01, formerly known as Reg. AG-3-0 1.01. Although there was uncontradicted testimony to the effect that Expo adheres to the regulations prohibiting roving solicitation, defendants were unable to locate any resolution by which they were formally adopted. Plaintiffs therefore contend that in the absence of applicable municipal ordinances (none have been cited to this Court) the enforcement of these regulations is an unconstitutional exercise of authority.

The answer to plaintiffs' argument must necessarily depend on the type of corrective and/or punitive measures used to compel adherence to the regulations' dictates. Defendants were unable to enlighten the Court at trial concerning the form these measures would take. If they are civil, such as expulsion from the fairgrounds, this Court sees little constitutional difficulty, particularly if such roving solicitors are initially warned that further solicitation will lead to expulsion or similar action. So long as there is no discriminatory application of the rule -- a problem not presented here -- such enforcement power would fall within the power of Expo to maintain and manage the fairgrounds. See Ohio Rev. Code § 991.03(A)(2) (Page 1968).

Id. at 423 (Emphasis added).

Without repeating Expo's relevant statutory authority, it should be noted that there is explicit language conferring a mandate to "maintain and manage property held by the state for the purpose of conducting fairs, expositions, and exhibits" and this provision is further amplified by Expo' s duty to conduct an annual state 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". In other words, what Defendants are herein contending is that, just like the defendant Library in Plaintiffs previous case in this Court, the aforementioned language does indeed convey an "intelligible principle" that expressly empowered Expo to make and enforce a "shoe rule" consistent with its statutory mandate to hold a state fair "for the care and comfort or amusement of the public" and to "maintain and manage property" held by the state for the purpose of conducting a state fair. Such authority is clear and so is the outcome of this case.

Again, this Court now needs to follow its own precedent, especially since it is evident that Expo's statutory scheme is an even more unambiguous grant of plenary authority than Columbus Metropolitan Library's legislative grant under R.C. 33 75.40(H).

(1) Police Power

In light of Plaintiff's memorandum in opposition, it would appear that some brief general comments are necessary with respect to the State's police power. It is well settled that the police power of the state is more than an attribute of sovereignty. It, like the power of taxation, is an essential element of government, and exists in every state without express declaration and without limitation, in so far as it is made to apply to the health, peace, comfort, and morals of the people. State v. Mountain Timber Co., 75 Wash. 581, 587, 135 P. 645 (1913), affd, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685 (1917). In Neinast v. Bd of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, certiorari denied (2004), 541 U.S. 990, 124 5. Ct. 2040, 158 L. Ed. 2d 495; the court, quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (1996), further stated that "[flhroughout our history the several States have exercised their police powers to protect the health and safety of their citizens. Because these are primarily, and historically, . . . matters of local concern, the States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.' (quotations and citations omitted)".

Consistently, the Ohio Expositions Commission, like the multitude of other state entities created by the Ohio Legislature (including the Library Board), is but one manifestation of the Legislative branch's inherent right and necessary duty to govern it's citizens for their benefit, a mere vehicle for the exercise of the government's broad police power. Indeed, Expo's very existence and everything it does is but an exercise of the State's broad police power — the only question is how much of the State's police power was delegated to Expo via its statutory scheme. Thus, like the defendant Library Board in Plaintiff's previous case in this Court, the only question here is whether Expo acted within its statutory grant of power when it made and enforced a "shoe rule" for the Ohio State Fair. Indeed, as explained above, it calls for the exact same analysis employed in Neinast v. Bd. of Trustees of the Columbus Metro. Library 165 Ohio App. 3d 211; 2006 Ohio 287; 845 N.E.2d 570; 2006 Ohio App. LEXIS 224; Discretionary appeal not allowed by Neinast v. Bd. of Trs. of Columbus Metro. Library, 109 Ohio St. 3d 1506, 2006 Ohio 2998, 849 N.E.2d 1027, 2006 Ohio LEXIS 1918 (Ohio, June 21, 2006.

It is true that the statutes at issue for these two different governmental entities contain different words, but, as demonstrated above (and in Defendant's Motion to Dismiss), it is unnecessary to otherwise re-litigate identical relevant facts. Either this Court can find statutory authority for Expo to implement its "shoe rule" during the Ohio State Fair, or it cannot. It is that simple because any additional purported constitutional right to go barefoot at the Fair (or the library) has already been litigated. There are no facts alleged here by Plaintiff that will change the analysis or produce a different outcome than his previous litigation.

B. All of Plaintiffs constitutional claims are identical to those adjudicated adversely in prior litigation which constitutes binding precedent.

As previously mentioned in Defendants' Motion to Dismiss, Plaintiff Neinast raised every conceivable constitutional argument pertaining to a purported right to go barefoot in Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D.Ohio 2002), 190 F. Supp. 2d 1040. All of these arguments were rejected in the decision by District Judge Marbley. From the district court's judgment, Plaintiff appealed to the United States Court of Appeals for the Sixth Circuit, which affirmed the lower court's judgment. Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, certiorari denied (2004), 541 U.S. 990, 124 S. Ct. 2040, 158 L. Ed. 2d 495. In that case, Neinast raised claims of violation of right under the First, Ninth, and Fourteenth Amendments of the United States Constitution (seeking a remedy under 42 U.S.C. § 1983), and the Sixth Circuit also referenced claims based upon Article I of the Ohio Constitution, and §3375.40, of the Ohio Revised Code. Neinast, supra. 346 F.3d at 588.

Plaintiff Neinast later raised virtually the exact same issues in this Court. Neinast v. Bd. of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas. (C.P.C. No. O4CVH-06-6341. As Plaintiff himself notes, all of his claims were ultimately dismissed based on res judicata save his claim that the Library lacked statutory authority to make and enforce a rule requiring the wearing of shoes in the library. He lost. This decision was later affirmed, of course, by the Ohio Court of Appeals for the Tenth Appellate District, Neinast v. Bd. of Trustees of the Columbus Metro. Library 165 Ohio App. 3d 211; 2006 Ohio 287; 845 N.E.2d 570; 2006 Ohio App. LEXIS 224. The aforementioned cases speak for themselves and render Plaintiff's constitutional claims in this case specious. Plaintiff is not entitled to declaratory relief.

C. Plaintiff is not entitled to any injunctive relief because he does not show he is irreparably harmed by Expo's "shoe rule".

Plaintiff proffers no evidence demonstrating that he will suffer immediate and irreparable injury and that no adequate remedy at law exists. Additionally, just to clarify, it should also be noted that Defendants are and have at all times been willing to grant Plaintiff entrance and access to the fairgrounds during the Ohio State Fair on the condition that he wear shoes.

As previously mentioned, an injunction is an extraordinary remedy that requires clear and convincing proof. See, Natl. City Bank of Cleveland v. Natl. City Window Cleaning Co. (1963), 174 Ohio St. 510, 512; Franklin Cty. Dist. Bd. of Health v. Paxson (10th Dist. 2003), 152 Ohio App.3d 193, 2003-Ohio-1331 ¶25; Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21; Dandino v. Hoover (1994), 70 Ohio St.3d 506, 510; Landskroner v. Landskroner (8th Dist. 2003), 154 Ohio App.3d 471, 2003-Ohio-5077 ¶38, appeal denied (2004), 101 Ohio St.3d 1423. Plaintiff's injunction claim must be dismissed.

D. To the extent that Plaintiff seeks money damages from State Defendants, this Court lacks subject matter jurisdiction because such claims may only be heard in the Ohio Court of Claims.

Plaintiff now expressly declares that he is not seeking money damages. As such, any damage claims against State Defendants have been hereby waived or, in the alternative, must be dismissed for lack of subject matter jurisdiction.

III. CONCLUSION

For the foregoing reasons, the amended complaint must be dismissed.

Respectfully submitted, RICHARD CORDRAY (0038034) Attorey General   /s/ Richard M. Jones     RICHARD M. JONES (0059753) Assistant Attorney General 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3428 (614) 466-2980 (614) 728-9470 Fax Email: richard.jones@ohioattorneygeneral.gov Attorneys for Defendant

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Reply Memorandum was sent by ordinary mail this 11^th day of March, 2009 to:

Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147

Plaintiff Pro Se

/s/ Richard M. Jones     RICHARD M. JONES Assistant Attorney General