STATEMENT OF THE ASSIGNMENT OF ERROR
AND ISSE PRESENTED FOR REVIEW

I.	THE TRIAL COURT PROPERLY GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BECAUSE THE BOARD OF TRUSTEES OF THE COLUMBUS METROPOLITAN LIBRARY IS AUTHORIZED, PURSUANT TO R.C. § 3375.40(H), TO ESTABLISH A SHOE REQUIREMENT.

Issue Presented for Review

Whether the Board of Trustees of the Columbus Metropolitan Library's authority contained in R.C. § 3375.40(H) to "make and publish rules for the proper operation and management" of the Library includes the authority to establish a shoe requirement.

I.   STATEMENT OF THE CASE

This is not Plaintiff Neinast's first loss on summary judgment, nor is it his first appeal. In fact, this case has a long history of prior proceeding in both the state and federal courts, including the United States Court of Appeals Sixth Circuit. Plaintiff Neinast instituted the instant appeal from the May 27, 2005, decision of the Franklin County Court of Common Pleas granting Defendants' Motion for Summary Judgment and denying Neinast's Motion for Summary Judgment. These current proceedings began on July 17, 2004, when Neinast filed his second pro se Complaint against Defendants Board of Trustees of the Columbus Metropolitan Library ("the Library") and Patrick A. Losinski, Executive Director of the Library. On September 7, 2004, Plaintiff sought leave to file an Amended Complaint. Plaintiff's Complaint, as amended, appears to assert two counts:

• Paragraph 23 asserts that the Board does not have the authority under state law to make and enforce a rule requiring that shoes be worn in the library.

• Paragraphs 22 and 24 assert that Mr. Losinski and the Board enforced a rulat that was not promulgated by the Board and that enforcement of the rule deprived Plaintiff of his right to use the Library.

Because the Board has the authority under O.R.C. § 3375.40 to adopt a requirement that shoes be worn at the Library, Plaintiff's claims were dismissed on summary judgment. Section 3375.40 gives the Board the authority to establish rules for the proper operation and management of the Library. The proper operation and management of the Library necessarily includes the authority to establish rules, such as the shoe requirement, for the protection of the health and safety of the patrons as well as the protection of public funds and the fiscal integrity of the Library itself.

As to Plaintiff's apparent constitutional claims involving an alleged deprivation of his right to use the Library, having already litigated his claims on every level of the federal court system, those claims were barred by the doctrine of res judicata. Decision 5/27/05, p. 3-4, 7. Mr. Neinast's constitutional claims in the instant action were also, therefore, dismissed on summary judgment. Id. Mr. Neinast does not appeal that decision and rests his appeal solely on the Court's finding that the Board was (and still is) authorized to enact a shoe requirement pursuant to Ohio law.

For the reasons contained in this brief, Neinast's assignments of error are without merit and the judgment entry granting summary judgment should be upheld.

II.   RELEVANT FACTUAL ALLEGATIONS

A.   The Facts Underlying All of Mr. Neinast's Claims

Mr. Neinast claims he customarily goes barefoot whenever possible. (Amended Complaint ¶ 4, p. 2). In a series of incidents beginning on September 12, 1997 and culminating on March 2, 2001, Library personnel requested that Neinast leave the Library's Main Branch for refusing to obey the Library regulation that requires patrons to wear shoes. (Amended Complaint, ¶6, p. 2). The March 2, 2001 incident ended with Mr. Neinast's one-day eviction from the Library as a result of his repeated of the regulation requiring shoes.

Mr. Black, then-Executive Director of the Library, approved and promulgated the regulation in order to protect the safety of Library patrons from documented hazards within the Library—including blood, feces, semen and broken glass that have, on occasion, been found there. Neinast v. Bd. of Trs. of the Columbus Metro. Library, 190 F.Supp.2d 1040, 1044 (S.D. Ohio 2002); Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585, 593-94 (6^th Cir. 2003)¹ 

Mr. Neinast complained about being asked to leave the Letter in a letter to Mr. Black and various members of the Board of Trustees. (Amended Complaint ¶¶ 11-13, p. 3). In response, the President of the Board informed Neinast that the Board had authorized the regulation through its duly appointed director. (Amended Complaint ¶ 12, p.3). When Neinast continued to complain, Mr. Black requested that the Franklin County Prosecutor's Office confirm the legality of the rule requiring shoes. Neinast, 190 F.Supp.2d at 1042; Neinast, 346 F.3d at 589. The Prosecutor's office issued an opinion concluding that the regulation was constitutional. Neinast, 190 F.Supp.2d at 1042; Neinast, 346 F.3d at 589.

B.   The Federal Court Proceedings

On April 3, 2001, Mr. Neinast filed an action in the Franklin County Court of Common Pleas (captioned 01 CV 04 3104) against the Library, Mr. Black, and the Assistant Director of Security Vonzell Johnson, asserting that (1) the Library's shoe requirement violated his right to freedom of personal appearance under the 14^th Amendment and its Ohio analogue, (2) the policy violated his 1^st Amendment right to both express himself and access information in a public place, and (3) the policy violated his right to equal protection under both the federal and Ohio constitutions. Mr. Neinast, in addition, specifically requested a declaration "that the Board does not have the statutory authority under the law to make regulations requiring patrons to wear shoes in the Library." (Federal Amended Complaint, Request for Relief, ¶ B, p. 7) (attached hereto as Exhibit A). On May 11, 2001, the Library removed the action to the United States District Court of the Southern District of Ohio.

Thereafter, both parties filed for summary judgment. After analyzing the parties' cross-motions for summary judgment, District Court Judge Marbley held that all of Mr. Neinast's claims were meritless. With regard to Neinast's claims involving the Board's authority, the Court held that the question was one of state law not sufficient to state a claim under § 1983. Neinast, 190 F.Supp.2d at 1047-48.

On appeal, the Sixth Circuit Court of Appeals affirmed Judge Marbley's decision to grant the Library's Motion for Summary Judgment in its entirety. With respect to Mr. Neinast's claims involving the Board's authority, the Court held:

Neinast's claim turns upon a question of state law — namely, the amount of rulemaking authority the Board can properly delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983.^Q>)

Neinast, 346 F.3d at 597. Neither court specifically addressed Plaintiff's request for a declaratory judgment regarding the Board's authority to adopt a shoe requirement without regard to delegation of such authority. Neinast, 190 F.Supp.2d 1040; Neinast, 346 F.3d 585.

Mr. Neinast applied for certiorari to the United States Supreme Court on March 16, 2004. The Supreme Court unanimously denied his application on April 19, 2004.

C.   Post-Appeal Incidents

On May 3, 2004, Mr. Neinast wrote to the current Executive Director of the Library, Patrick Losinski, and again renewed his request that the Library abolish the barefoot rule. (Amended Complaint ¶ 16, p. 4). Among other things, Plaintiff argued that Mr. Losinski lacked Mr. Black's "vested interest" in the enforcement of "his" rule. In closing, the letter threatened further litigation against the Library, if the rule requiring shoes to be worn in the Library continued in effect.

Thereafter, Mr. Neinast returned to the Library on two occasions. On June 10, 2004, Mr. Neinast came to the Library wearing sandals, which he removed once he had gained entrance to the Library's facilities. (Amended Complaint ¶ 17, p. 4). Library personnel requested that he wear his shoes, and he apparently complied. On June 14, 2004, Mr. Neinast entered the Library barefoot and was asked to leave. He was told that he was welcome to return to the Library if he was wearing shoes. (Amended Complaint ¶ 18, p. 4).

The Library Board of Trustees, on or about August 26, 2004, passed a new Code of Conduct (attached hereto as Exhibit B) governing patrons, which incorporates a requirement that shoes be worn in the Library. (Amended Complaint ¶ 19, p. 4). Mr. Neinast now claims that the Library's decision to create a regulation requiring its patrons to wear shoes violates O.R.C. § 3375.40(H). (Amended Complaint ¶¶ 22-24, p. 5). the trial court, however, properly held that O.R.C. § 3375.40(H) grants the Library Board plenary authority to adopt rules for the "proper operation and management" of the Library, including rules related to clothing worn by patrons. Decision 5/27/05, p. 9. The trial court further held that the shoe requirement does not violate the legislative intent reflected in the plain meaning of the statute. Decision 5/27/05, p. 9.

III.   ARGUMENT

Summary judgment was properly granted to the Library and denied to Neinast because the Customer Code of Conduct was created pursuant to valid statutory authority. Neinast's assignments of error must, therefore, be overruled and the judgment of the Franklin County Court of Common Pleas should be affirmed in its entirety.

A.   R.C. § 3375.40(H) Grants The Library Board The Authority To Promulgate A Shoe Requirement

1.   The Library Board's Authority To Require Shoes Is Clear From The Plain Language of R.C. § 3375.40(H).

In Paragraphs 22 and 23 of his Complaint, Plaintiff asserts that the Board does not have the authority to adopt a policy requiring shoes. Plaintiff's attack on the procedural underpinnings of the policy requiring shoes is summarized in Paragraph 23 of his Amended Complaint: "The Board has not been granted the authority under statute to make and enforce a shoe rule." (Amended Complaint ¶ 23, p. 5). Plaintiff's attack, however, must fail because, as the trial court held, the Library's Board of Trustees is empowered to make and enforce a rule requiring that its patrons wear shoes. Decision 5/27/05, p.9, 12.

Section 3375.40(H) of the Revised Code provides the basis for the Board's authority to adopt the Code of Conduct. That section states in pertinent part:

Each board of library trustees ... may do the following:
* * *
(H) Make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, ...;
* * *.

Ohio Rev. Code § 3375.40(H) (West 2005) (attached hereto as Exhibit C). As the trial court properly held, this unambiguous statute grants the Library plenary authority to enact rules for the proper operation and management of the Library. Decision 5/27/05, p.9. Accordingly, as Judge Frye noted, the statute is clear and unambiguous and should, thus, be applied as written and no further interpretation is necessary. Decision 5/27/05, p. 8 (citing Lyndon Prop. Ins. v. Div. of Mineral Res. Mgmt., 2005-Ohio-2294, 2005 Ohio App. LEXIS 2184 at ¶ 12 (10^th Dist. 2005) (attached hereto as Exhibit D).

2.   In Any Event, The Library's Shoe Requirement Is Valid Because It Is Not Unreasonable, Nor Is It In Conflict With The Legislative Intent Of R.C. § 3375.40(H).

Even in the event that the statute is not clear, the Supreme Court of Ohio has held that judicial review of administrative rules is confined to deciding whether such rules are reasonable as applied to the facts of a particular justiciable case. In re Appeal of Buckeye Power, Inc., 42 Ohio St. 2d 508, 509, 330 N.E.2d 430, 431 (1975). According to controlling law, the Library's rule are, therefore, valid unless they are (1) unreasonable or (2) in clear conflict with the statutory intent of the legislation governing the subject matter. Id.; Woodbridge Partners Group, Inc. v. Ohio Lottery Comm'n, 99 Ohio App. 3d 269, 273, 650 N.E.2d 498, 500-01 (Franklin Cty. 1994). As the trial court observed, the federal courts already determined that the Library's shoe requirement was a reasonable rule as applied to Mr. Neinast's situation. Decision 5/27/05, p. 12; Neinast, 190 F.Supp.2d at 1044, 1047, 1048; Neinast, 346 F.3d at 592, 596. And the law is well-settled that Mr. Neinast is now bound by those determinations. Decision 5/27/05, p. 7; Superior's Brand Meats, Inc. v. Lindley, 62 Ohio St. 2d 133; 137, 403 N.E.2d 996, 1000 (1980). This Court, accordingly, need only determine whether the shoe requirement is in clear conflict with statutory intent. Woodbridge Partners Group, Inc., at 273, 650 N.E.2d at 501.

As the trial court specifically stated, however, the rule is not in clear conflict with the intent of the ligislation governing the subject matter. Decision 5/27/05, p. 9. A rule is not inconsistent with a statute unless the rule contravenes or is in derogation of some express provision of the statute. Woodbridge Partners Group, Inc., at 273, 650 N.E.2d at 501. Mr. Neinast cannot point to any express provision with which the shoe requirement is at odds. There is indeed no such provision.

The trial court properly determined that O.R.C. § 3375.40(H), in fact, specifically authorizes the Library to establish the shoe requirement as a rule established for the proper operation and management of the Library. Decision 5/27/05, p. 9, 12; O.R.C. § 3375.40(H). Indeed, the federal courts found that the policy requiring shoes serves two substantial governmental interests; it protects the health and safety of Library patrons and protects the fiscal integrity²  of the Library.³  Neinast, 190 F.Supp.2d at 1044; Neinast, 346 F.3d at 592-595.

The Library's facilities are visited by thousands of individuals each day, none of them directly supervised by Library staff. As the federal courts found, the floors and hallways of Library facilities may hold any number of hazards. Neinast, 190 F.Supp.2d at 1044; Neinast, 346 F.3d at 593-595. The Library and its employees cannot guarantee that facilities will be completely free of hazards created by other patrons, by the staff, or by the facility itself. The requirement that Library patrons wear shoes is without question a rational and reasonable means to effectuate the Library's interest in protecting the safety of patrons and preventing injury and is, therefore, related to the proper operation and management of the Library. See Neinast, 190 F.Supp.2d at 1044, 1047, 1048; Neinast, 346 F.3d at 592, 596.

The same is true with respect to the Library's interest in protecting its fiscal integrity — the federal courts found that hand in hand with the Library's safety concern is its interest in avoiding tort liability for injuries caused to barefoot patrons. Neinast, 346 F.3d at 592, 594. Individuals injured in ways that shoes might have prevented frequently bring suit against businesses and charitable organizations. See Felder v. Victory Fitness Ctr., 1998 Ohio App. LEXIS 3328, *1 (Franklin Cty. 1999) (attached hereto as Exhibit E) (Invitee sued owner of premises when she slipped in a shower because her feet were bare); Pressler v. Calhoun, 1994 Ohio App. LEXIS 4027, *1 (Warren Cty. 1994) (attached hereto as Exhibit F) (invitee sued owner of premises when a stake punctured his bare foot); Bisnett v. Mowder, 560 P.2d 68, 68 (Ariz. App. 1977) (owner of premises may be liable for conditions which caused area to be more hazardous to those with bare feet); Lamb v. Redemptorist Father of Georgia, Inc., 142 S.E. 2d 278, 283 (Ga. App. 1965) (Charitable organization sued by bare-foot patron who cut his foot).

In Ohio, public libraries are explicitly not protected by soverign immunity from immunity from these types of tort claims (or from the concomitant attorneys' fees that arise as a result of such claims). See O.R.C. § 2744.02 (political subdivisions may be liable for damages caused by negligence in the performance of "proprietary" acts) (attached hereto as Exhibit G); Mathis v. Cleveland Public Library, 9 Ohio St. 3d 199, 201, 459 N.E.2d 877, 879 (1984) ("[A] public library will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities."). As a result, in the absense of a policy requiring shoes, the Library could easily be subject to claims for such injuries and their attendant litigation costs.

The proper operation and management of the Library must include, at the least, the ability to establish regulations for the protection of its patrons as well as for the protection of the Library's own fiscal integrity. In fact, the Ohio Revised Code authorizes the Board to expend, for Library purposes, all moneys credited to the Library and to set aside any unencumbered surplus "for any purpose." O.R.C. § 3375.40(B), (K). It is only logical that the Board would have the concomitant ability to establish rules for the protection of these same public funds.

B.   R.C. § 3375.40(H) Does Contain Guidelines And, In Any Event, the Matz Exception, Allowing the Legislature To Dispense With Specific Guidelines, Is Applicable.

Neinast repeatedly contends that O.R.C. § 3375.40(H) confers discretion without guidelines and is unconstitutional. Brief, p.6, 8. This argument fails in two respects. First, O.R.C. § 3375.40(H) does contain limitations on the Library's authority. Specifically, as the trial court found, the Library's authority is limited to the "proper operation and management" of the Library. Decision 5/27/05, p. 8; O.R.C. § 3375.40(H). Second, Neinast cannot now challenge the constitutionality of statute itself. Brief, p.6, 8. This appeal is, instead, limited to whether O.R.C. § 3375.40(H) confers authority on the Library to establish a shoe requirement. Arguments beyond that have not been argued or decided below or appealed here and are, therefore, not proper for review. Gutierrez v. Trumbull County Bd. of Elections, 65 Ohio St.3d 175, 177, 602 N.E.2d 622, 624 (1992) (holding that the constitutional issues appellant raised were "not properly before this court because they were not raised by the complaint or decided by the court of appeals below" ... and "appellant cannot change the theory of his case and present these new arguments for the first time on appeal."). See also Decision 5/27/05, p. 5.

Further, "[legislative bodies] can confer administrative powers . . . to make rules and regulations to carry out the legislative intent," even in the absense of specific guidance from the legislative body. Weber v. Board of Health, 148 Ohio St. 389, 396, 74 N.E.2d 331, 335 (1947). In Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271, 7 N.E.2d 220, syllabus, paragraph 7 (1937), the Ohio Supreme Court held that

[W]hen 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 ... restrictions and limitations.^Q>

This is just such a case. While the legislature has established the authority of the Board to expend funds and promulgate rules for the proper operation and management of the Library, it has nonetheless made the decision to leave the specifics of establishing rules for health, safety and fiscal protection of public funds to the Board. This is a proper function of the legislature where it is not in a position to fathom every permutation of what should be included in the proper operation and management of the Library. The legislature properly left this decision to the Board, the entity with more practical knowledge of what rules are necessary for the proper operation and management of the Library. As the trial court observed, "Drawing lines for conduct is the obligations of the Board of the Library."^Q> Decision 5/27/05, p. 10. The Library's establishment of rules protecting its patrons and public funds carries out the legislative intent embodied in § 3375.40(B), (H), and (K).

Arguing against the application of Matz, Neinast improperly suggest that Matz limited the necessary flexibility and practicality of legislation to police power regulations. Brief, p.6-7; Matz, at 281, 7 N.E.2d at 225. Neinast is wrong. Instead, the court noted that there "are many instances where it is impossible or impracticable to lay down criteria or standards without destroying the flexibility necessary to enable the administrative officers to carry out the legislative will; especially may such a contingency arise when the discretion conferred relates to police regulations."^Q> Matz, at 281, 7 N.E.2d at 225 (emphasis added). If Neinast's arguments were to prevail, O.R.C. § 3375.40(H) would confer absolutely no authority on the Library because it does not contain exact standards and areas within which the Library can establish rules. That indeed would improperly make the libraries "impotent" and unable to "achieve the ends for which they were created"^Q> and certainly cannot be the legislature's intended result. Id. at 286, 7 N.E.2d at 227.

C.   Neinast's Principal Case Does Not Support His Conclusion That The Library Has No Authority to Require Shoes

As the trial court explained, Neinast's principal case, D.A.B.E., Inc., v. Toledo-Lucas County. Bd. of Health, 96 Ohio St.3d 250, 773 N.E.2d 536 (2002), is inapposite to the instant case and not controlling. Decision 5/27/05, p. 10. In D.A.B.E., the county board attempted to enact a smoking ban in all enclosed, indoor areas throughout the county.⁴  D.A.B.E., 96 Ohio St. 250, 773 N.E.2d 536. The court found that the board did not have "unfettered authority" to promulgate any health regulation deemed necessary because the legislature went to great lengths to spell out the specific areas of authority in that case and could not have intended one statute to give the boards plenary authority. D.A.B.E., Inc., at 251, 255-256, 259, 773 N.E.2d at 539, 542-543, 546 The same cannot be said of the instant case. The Library does not suggest it can promulgate any rule it wants: it recognizes the limits created in O.R.C. § 3375.40(H) that the rules must relate to the "proper operation and management" of the Library. Further, as Judge Frye properly recognized, the statutory scheme in D.A.B.E. is not comparable to the straightforward grant of authority set for library boards in O.R.C. § 3375.40(H). Decision 5/27/05, p. 11.

The trial court properly interpreted D.A.B.E., noting that the court decided D.A.B.E. on the basis that the statute was merely a rule-enabling statute, not a provision granting substantive authority. D.A.B.E., Inc., at 261, 773 N.E.2d at 547; Decision 5/27/05, p. 11. In the instant case, Judge Frye correctly concluded that O.R.C. § 3375.40(H) is not merely a rules-enabling statute, but grants the Library the substantive and plenary power⁵  to enact rules for the "proper operation and management" of the Library. Decision 5/27/05, p. 11. As the trial court explained, that determination is confirmed by the language used in the companion statute, O.R.C. § 3375.06, specifically referenced in O.R.C. § 3375.40. Decision 5/27/05, p. 11. O.R.C. § 3375.06 authorizes the creation of library boards of trustees and states that libraries "shall be under the control and management" of such boards. O.R.C. § 3375.06 (attached hereto as Exhibit H); Decision 5/27/05, p. 11. The statute goes on to state that "[s]uch board of library trustees shall have control and management of the county free library, and in the exercise of such control and management shall be governed by sections 3375.33 to 3375.41, inclusive, of the Revised Code." O.R.C. § 3375.06; Decision 5/27/05, p. 11. Citing this language, the trial court properly held that such "[u]nequivocal words like 'control and management,' repeated three times for emphasis ... hardly suggest that the authority ... to '[m]ake and publish rules for the proper operation and management' is to be interpreted restrictively. Decision 5/27/05, p. 11.

The Library needs flexibility to meet unforeseen concerns, to promptly address any problems, and to have the freedom to abate hazards and other issues that are unique to their specific locations. O.R.C. § 3375.40(H) provides the Library with such flexibility and power. See O.R.C. § 3375.40(H).

Under Ohio law, the Board has authority to make and enforce a rule requiring that its patrons wear shoes and thus, Plaintiff's claims were properly dismissed on summary judgment.

IV.   CONCLUSION

In short, Defendants were entitled to judgment as a matter of law because the Board is empowered by statute to establish rules requiring patrons to wear shoes. As a result, Defendants respectfully request that this Court affirm the trial court's decision in all respects.

Respectfully submitted, /s/ Heather Stutz      Philomena M. Dane (0044064) Heather L. Stutz (0078111) Squire, Sanders & Dempsey L.L.P. 1300 Huntington Center 41 South High Street Columbus, OH 43215 (614) 365-2700 Attorneys for Appellees Board of Trustees of the Columbus Metropolitan Library and Patrick A. Losinski

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Brief of Appellees was served by regular U.S. mail, postage prepaid upon Robert A. Neinast, Plaintiff-Appellant, 8617 Ashford Lane, Pickerington, OH 43147-0000, this  10th  day of August, 2005.

/s/ Heather Stutz      One of the Attorneys for Appellees Board of Trustees of the Columbus Metropolitan Library and Patrick A. Losinski

---

Footnotes:

1. Mr. Neinast is bound by collateral estoppel to the federal courts' factual determinations. Superior's Brand Meats, Inc. v. Lindley, 62 Ohio St. 2d 133; 137, 403 N.E.2d 996, 1000 (1980). ("Where there is identity of parties and of issues, an earlier decision may be used to bar litigation of identical issues in a later case involving a different cause of action under the doctrine of collateral estoppel.") [Back]

2. Though Neinast's brief focuses on the requirement as solely a health and safety regulation, the Library maintains that the rule also serves the goal of protecting the Library's funds. [Back]

3. With respect to the federal courts' determination of all factual issues, Mr. Neinast is bound by collateral estoppel. Superior's Brand Meats, Inc., at 133, 403 N.E.2d at 1000. [Back]

4. The Library is only requiring its patrons to wear shoes while in the Library and nowhere else. The Library is simply administering policy the legislature already established throughout O.R.C. § 3375.40; that is, the policy to protect public safety and funds. The Library does not, as Neinast suggests, deem that it has the power to promulgate any regulation deemed necessary. The Library only contends that it has the power to promulgate rules for the "proper operation and management" of the Library, such as the shoe requirement. [Back]

5. Also, unlike in D.A.B.E., the instant statutory scheme does not include lengthy, specific grants of authority which a finding of plenary authority under O.R.C. § 3375.40(H) would render superfluous. [Back]