CASE NO. 04CVH-6341



(filed April 28, 2005)


(filed April 29, 2005)



This is the latest chapter in a long-running dispute over whether the Board of Trustees of the Columbus Metropolitan Library and its current Director Patrick Losinski, [collectively "the Library"], may require patrons to wear shoes in their facilities. Plaintiff, arguing that living life barefoot is good for his physical and emotional health, and that the Library lacks legal authority to require shoes on patrons, has already made an extended federal case out of his professed concern over his "right" to go barefoot. Now he attempts a renewed challenge in the Court.

Litigation to date is reviewed in a decision by this Court filed March 14, 2005, and in decisions by District Judge Marbley and the United States Court of Appeals for the Sixth Circuit. Neinast v. Bd. of Trustees of the Cols. Metropolitan Library (S.D. Ohio 2002), 190 F.Supp.2d 1040, 2002 U.S. Dist LEXIS 5105, aff'd 346 F.3d 585, 2003 U.S. App. LEXIS 20719, Rehearing en banc denied 2003 U.S. App. LEXIS 26713 (6th Cir. 2003), cert. denied 541 U.S. 990 (2004).

The Library seeks summary judgment. It argues that it has authority under state law to make and enforce a rule requiring that shoes be worn inside Library premises. Further, it argues that the Library properly promulgated a rule to that effect last summer, such that any claims not already adjudicated in the federal litigation must fail. As to whether Plaintiff's consitutional rights are implicated by the policy, the Library argues all such issues were resolved against the Plaintiff in the prior litigation in the federal courts, and those decisions are binding under the res judicata doctrine.

Plaintiff has cross-moved for summary judgment. He agrees that the issue presented is limited to whether the Library has been granted authority under state law to make a rule prohbiting patrons from going barefoot. (Reply Mem. of PL, filed May 20, 2005, at p. 1.) However, he joins with that question assorted arguments about whether going barefoot is commonly tolerated in our community, suggesting thereby that the footwear requirement adopted by the Library is irrational and not supportable by any conceivable health, safety or aesthetic reasons. He asserts the harm he suffers from the rule is great because few libraries have a collection comparable to that of the Columbus Metropolitan Library.

The Factual Record

The Library has not filed any factual materials other than the Amended Complaint which Mr. Neinast submitted to the United States District Court in June 2001, plus a copy of the three-page "Customer Code of Conduct Policy" adopted by the Board of Trustees effective Sept. 1, 2004. In his Memorandum opposing the Library's motion for summary judgment, Plaintiff does not challenge the authenticity of these documents. Indeed, he filed the same three-page "Customer Code" on April 28, 2005, as an attachment to his own Affidavit. Plaintiff states that with some "clarifications" the "Library's description of the facts is adequate." (Mem. file May 5, 2005, at p. 1.)

Plaintiff has filed a large amount of additional material. On May 5 he filed a short Affidavit executed May 3 2005, together with his letter to Director Losinski sent a year earlier. Plaintiff also submitted a February, 2001 article about foot wear from the Journal of "Podiatry Management." On April 29, 2005, (with his own Rule 56 Motion,) the Plaintiff submitted Affidavits signed in 2001 by Morgan Condo fo the Columbus Health Dept., and Gregory Morgan, a friend who visited the Library (and various other public buildings) with the Plaintiff while they were barefooted. He also submitted a May, 2004 Affidavit of the Directory of the Pickerington Public Library; a July 2004 Affidavit of a woman from California who has traveled by air while barefoot; a September 2001 Affidavit from a woman employed by the Office for Intellectual Freedom of the American Library Association together with the ALA "Library Bill of Rights," "Code of Ethics" and "Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage"; a 2001 Affidavit of Larry Black, (Mr. Losinski's predecessor as Executive Director); and a number of pages from 41 C.F.R., Par 504 on rules governing Smithsonian Institution buildings and grounds. On April 28, 2005, Plaintiff filed his own lengthy 23-paragraph Affidavit, detailing his richly varied experience "going barefoot nearly continuously since mid-1997". (Neinast Aff. ¶ 2). Also filed on April 28 were several discovery responses by the Library from the federal litigation.

There is no genuine issue of material fact presented in this record.

The Federal Court Litigation

Plaintiff Neinast thoroughly argued many claims with respect to the previous version of the Library footwear requirement during the federal litigation which lasted from 2001 until April, 2004. The decision by the Sixth Circuit, announced in October 2003, clearly shows that almost every argument now advanced by the Plaintiff was resolved against him in that previous case. He raised claims of violation of rights 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 references claims based upon Article I of the Ohio Constitution, and §3375.40, Revised Code. Neinast, supra, 346 F.3d at 588.

To summarize briefly, the federal litigation determined that Mr. Neinast's First and Fourteenth Amendment claims arose in the context of a limited public forum, and did not qualify as symbolic speech. Id. at 590, fn. 1. Further, as a limited public forum a Library setting may impose restrictions on patrons which are reviewed under a deferential, rational-basis standard. Id. at 591-92. No Constitutional violation exists when the Library restriction on barefooted patrons is enforced, such as for any "liberty" interest in personal appearance. More generally, the Circuit Court decision recognized that the "requirement that patrons of the Library wear shoes does not implicate a fundamental right" under the Constitution. Id. at 596.

The federal courts recognized the broad authority of state agencies to exercise their police powers to protect the health, safety, comfort, and quiet of the public. That is, "the Library is not confined to prohibiting behavior that is actually disruptive." Id. at 593, citing Kreimer v. Bureau of Police for the Town of Morristown, (3d Cir. 1992), 958 F.2d 1242, 1264 n. 28. Addressing some of the same factual material as has been submitted to this Court by the Plaintiff, purporting to demonstrate that there is no real need for restrictions on barefooted patrons, the Sixth Circuit observed "[e]ven foolish and misdirected provisions are generally valid." Id. at 596, n. 14.

R.C. § 3375.40 lists many powers which may be exercised by a Board of a public library. Included in the long list is the following:

(H) Make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, including rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county.

Although referencing that statute, the federal decisions do not purport to adjudicate the scope of this statute as a matter of Ohio law, because the previous lawsuit asserted federal civil rights claims actionable under 42 U.S.C. §1983. §1983 addresses deprivations of federal statutory and constitutional rights. It "does not cover official conduct that allegedly violates staet law." Id. at 597; 190 F.Supp.2d at 1047-48.

Plaintiff's Claims in his Amended Complaint

On March 14, 2005, this Court granted Plaintiff's Motion for Leave to file an Amended Complaint. The case was re-focused upon the decision of the Library Board in August 2004, adopting the new "Customer Code of Conduct Policy." (Am. Compl. ¶ 19). That Policy was adopted four months after the Petition for Writ of Certiorari was denied by the Supreme Court of the United States. However, comparable to previous Library policy, the Customer Code prohibits access to patrons who are improperly dressed, which is defined to include those in "bare feet and no shirt." Customer Code, at p. 2.

In the portion of the Amended Complaint entitled "Cause of Action" the Plaintiff asserts only that the Library lacked "the authority under statute to make and enforce a shoe rule." (Am. Compl. ¶ 23). The relief sought, therefore, is a declaratory judgment and permanent injunction prventing the Library from enforcing any rule or regulation specifying that footwear must be worn, (together with relief ancillary thereto, such as a court order that any signs advising the public of a footwear rule be removed.) (Am. Compl., page 5.) No other issue of state law is raised in the Amended Complaint, (notwithstanding the mention of Article I of the Ohio Constitution in the previous federal litigation.)

Res Judicata Doctrine in Ohio

The Library argues that the previous federal litigation forecloses consideration of the merits of this case. At the time of that litigation the Library had a policy comparable to the one now in force, although it was apparently only adopted by the Executive Director and not by the Library Board. That informality was addressed when the new Customer Code was adopted following the end of the federal litigation.

The recent decision in Godale v. Chester Twp. Bd. of Trustees (11th Dist.), 2005-Ohio-2521 summarized the law of res judicata in Ohio:

In recent years, the court has not limited the application of the doctrine of res judicata to bar only those subsequent actions involving the same legal theory of recovery as a previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 382. “It has long been the law of Ohio that 'an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit[.]” (Emphasis sic.) Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, quoting Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69. Moreover, according to the Supreme Court of Ohio, the doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it. Natl. Amusements, Inc. at 62.

The Supreme Court of Ohio stated, “[t]oday, we expressly adhere to the modern application of the doctrine of res judicata *** and hold that a valid, final judgment rendered upon the merits bars all subsequent action based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” (Emphasis added.) Grava at 382. Q>

Similarly, in addressing application of res judicata to a prior decision of a federal court, the Ninth District recently ruled in Cook v. Criminger, 2005-Ohio-1949:

Under the doctrine of res judicata, “a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. In addition, Ohio law has long recognized that "'an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.'" Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, quoting Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69. The doctrine serves the valid policy of ultimately ending any given litigation and ensuring that no party will be "vexed twice for the same cause." Green v. Akron (Oct. 1, 1997), 9th Dist. Nos. 18284/18294, quoting LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, 113.

The Court of Appeals for the Tenth District recently applied the same rules to a new suit filed by a prisoner asserting constitutional arguments that had already been adjudicated against him in the Ohio Court of Claims. Dorsey v. Grafton Correctional Institution, 2005-Ohio-2433 at ¶ 7.

However, one practical exception to the res judicata doctrine was recognized in Davis, Exr. v. Wal-Mart Stores, Inc., 93 Ohio St. 3d 488, 491, 2001-Ohio-1593:

"'The doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time, but rather a rule of fundamental and substantial justice, or public policy and of private peace. The doctrine may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.'" Grava, 73 Ohio St.3d at 386, 653 N.E.2d at 232 (Douglas, J., dissenting), quoting 46 American Jurisprudence 2d (1994) 786-787, Judgments, Section 522. Q>

Thus, the Davis decision held that res judicata would not bar litigation of a claim that could not have been asserted in a prior lawsuit. Essentially the same holding was announced in State ex rel. Westchester Estates, Inc. v. Bacon (1980) 61 Ohio St.2d 42, 45-46.

This Court concludes that Plaintiff is barred from asserting any legal claim or issue which was determined, or which could have been determined, in the prior federal litigation against the Library. That covers everything except the adoption of the Consumer Code, which occurred four months after that federal litigation was completed. In addition, Mr. Neinast is collaterally estopped from relitigating factual finding made by the federal courts. Facts determined in the prior lawsuit are binding now, in deciding the one legal issue of state law not previously addressed, because those earlier federal decisions were between exactly the same parties and the Plaintiff had an ample opportunity to develop the facts in that prior lawsuit. Fort Frye Teachers Assn. v. SERB, 81 Ohio St. 3d 392, 395, 1998-Ohio-435, explained the concept as follows:

The doctrine of issue preclusion, also known as collateral estoppel, holds that a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different. Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67, paragraph three of the syllabus; Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, 12 O.O.3d 403, 391 N.E.2d 326, syllabus; Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 2 OBR 732, 443 N.E.2d 978, paragraph one of the syllabus. While the merger and bar aspects of res judicata have the effect of precluding the relitigation of the same cause of action, the collateral estoppel aspect precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action that was based on a different cause of action. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112, 49 O.O.2d 435, 437-438, 254 N.E.2d 10, 13. "In short, under the rule of collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit." Id. at 112, 49 O.O.2d at 438, 254 N.E.2d at 13. Q>

Fort Frye addressed findings of fact made by a federal court jury, which were later applied in a State Employee Relations Board proceeding. See also Superior's Brand Meats, Inc. v. Lindley, Tax Commr. (1980), 62 Ohio St.2d 133, 137.

Library Board Authority Under §3375.40(H)

The Library appears to concede that "[n]either federal court specifically addressed Plaintiff's request for a declaratory judgment regarding the Board's authority to adopt a shoe requirement ...." (Mem. filed April 28, 2005, at 5.) As noted above, the Amended Complaint in this case frames the issue presented as the scope of statutory authority given to any library board by R.C. §3375.40, in the context of adoption of the Consumer Code. There first point of reference is therefore the words of the statute.

The language used by the General Assembly in §3375.40(H) has never been the subject of judicial interpretation by an Ohio court, so far as research can determine. However, the statutory language is broad, and plainly written. It confers plenary authority upon the Board of the Library with respect to "rules for the proper operation and management of the free public library and facilities ... including rules pertaining to the provision of library services to individuals ... that are not inhabitants of the county." R.C. 3375.40

The rules for statutory construction under Ohio law were summarized recently by Judge Klatt in Lyndon Property Ins. v. Div. of Mineral Resources Mgt. (10th Dist.), 2005-Ohio-2294, 2005 Ohio App. LEXIS 2184 at ¶ 12:

When ascertaining the meaning of a statute, a court has an obligation to give effect to the General Assembly's intent. Colbert v. City of Cleveland, 99 Ohio St.3d. 215, 2003-Ohio-3319, at ¶12. "'If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.'" Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 274, quoting State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545. However, if the meaning of the statute is subject to various interpretations, a court must invoke rules of statutory construction to determine the legislative intent. Symmes Twp. Bd. of Trustees v. Smyth (2000), 87 Ohio St.3d 549, 553. Thus, when a statute is ambiguous, a court may consider the object sought to be attained by the statute and the consequences of a particular construction. R.C. 1.49(A) and (E); Family Medicine Found., Inc. v. Bright, 96 Ohio St.3d 183, 2002-Ohio-4034, at ¶9; Smyth, supra, at 556. Q>

The United States Court of Appeals recognized that it "will not overturn the Board's requirement that patrons of the Library wear shoes unless the varying treatment of barefoot persons 'is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the Board's actions were irrational.' ... [T]he Board has made the reasonable determination that the requirement that patrons of the Library wear shoes is necessary to protect 'the health and safety of Library patrons, who may be harmed in the Library if allowed to enter barefoot,' and 'the economic well-being of the Library, by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented'." Q> Neinast, 346 F.3d at 596. 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. As a state court interpreting state law, this Court now makes that holding explicit.

"An unambiguous statute means what it says." Q> State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 206, 1998-Ohio-271. This Court finds and declares that the Library has plenary authority under R.C. §3375.40(H) to adopt rules for the proper operation of facilities it owns or which fall under its jurisdiction. That legal authority includes the ability to impose requirements about clothing worn by patrons desiring to use library facilities, such as a requirement that shoes and shirts be worn. A clothing rule does not violate the legislative intent reflected in the plain meaning of the statute.

Plaintiff argues that, notwithstanding the breadth of the statute, the Library's legal authority must be narrowly construed. Otherwise, he hypothecates, the Library might next require every patron to wear a hard hat, lest books tumble from the stacks and hurt someone. (Mem. of Pl. filed May 5, 2005, at p. 9.) He also points out that currently popular footwear - such as flip-flops - is so revealing and offers such little protection to the wearer that it is ridiculous to distinguish the patron in those shoes from the patron arriving completely barefooted. (Reply Mem. at pp. 2-3.) These arguments are irrelevant. First, factually the federal litigation reviewed and rejected comparable assertions that there is no rational basis for a footwear requirement. Secondly, unless plainly irrational under any possible set of circumstances, all rulemaking authority belongs to the Board of the Library under a delegation of authority from the General Assembly. The Library can make such rules as it sees fit, and need not commission scientific studies in order to justify rulemaking.

Someone like the Plaintiff can always argue that virtually any rule is not the most prudent, or is unnecessary. However, if the statutory authority to make rules is subject to being reopened in court will not the Library next have to justify why "leaving children under age 7 unattended" is a prudent rule? Why age 7? Isn't that unfair to the mature five-year olds who can read, and cross streets by themselves? Or, what about the Customer Code prohibition against patrons arriving under the influence of alcohol or drugs? That portion of the Code may exclude a sizeable group of potential patrons. Besides, there is no Breathalyzer at the front door, so how is it determined when some patron is under the influence of such substances? More importantly, who is to say that a habitual alcoholic or drug user will not benefit from reading in the Library? Embracing the approach to the law advocated by the Plaintiff would embroil the Library and other public institutions in similar, endless disputes whenever a patron had the time and energy to challenge management of the institution over conduct rules. Drawing lines for conduct is the obligation of the Board of the Library. If they make a silly decision the answer is not litigation. Virtually the only recourse available — absent some infringement of rights protected in the Constitution — is to replace the Board.

Plaintiff resists this conclusion by relying upon the decision in D.A.B.E., Inc. v. Toledo-Lucas Co. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172. In that case business owners sought a declaration that a clean indoor air regulation, which effectively banned smoking, was beyond the authority delegated to a local board of health under Ohio law. However, notwithstanding a superficially expansive grant of authority in R.C. §3709.21, the Supreme Court concluded that "the General Assembly has not indicated any intent through R.C. §3709.21, or otherwise, to vest local boards of health with unlimited authority to adopt regulations addressing all public-health concerns. Id. at ¶ 22. The Court then explained that the statutory framework "explicitly and in great detail identified specific areas where local boards of heath have substantive regulatory power" and that "these provisions are quite numerous and some are quite extensive." Id. at ¶ 23. From this the Court reasoned that having gone to great length to spell out specific areas of authority for boards of health, the General Assembly could not have intended in R.C. §3709.21 to simply give boards plenary authority to adopt any regulations on any subject which they deemed desirable to protect the public health. Id. at ¶ 25. That statutory scheme is not comparable to the straightforward grant of authority set for library boards in R.C. §3375.40.

The conclusion that situation is not a precedent which supports Mr. Neinast is confirmed by the Supreme Court's recognition, later in the D.A.B.E., Inc. decision, that the statute upon which the Toledo smoking ban was based was merely "a rule-enabling statute, not a provision granting substantive regulartory authority." Id. at ¶ 45. Unlike that situation, this Court has already found from the plain language used the R.C. §3375.40 is a plenary grant of authority to make rules of the sort at issue here. This is confirmed by language used in a companion statute. R.C. §3375.06, is a statute specifically cross-referenced in §3375.40. In authorizing creation of boards of trustees for libraries, the General Assembly specifically stated that libraries "shall be under the control and management" of such boards. Furthermore, "[s]uch board of library trustees shall have the control and management of the county free public 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." Unequivocal words like "control and management," repeated three times for emphasis within R.C. §3375.06, which is a statute explicitly linked to R.C. §3375.40, hardly suggest that the authority conferred by R.C. §3375.40(H) to "[m]ake and publish rules for the proper operation and management" is to be interpreted restrictively.

The factual reasonableness of the Library policy

Although this case was not framd in the Amended Complaint as anything broader than a question of the Library's "authority under statute to make and enforce a shoe rule" (Am. Compl. ¶23), given the broader arguments advanced by the Plaintiff in his Motion for Summary Judgment filed April 29, 2005, the Court will conclude by briefly addressing the reasonableness, as a question of fact, of the "Customer Code of Conduct Policy" insofar as it prohibits patrons from using Library facilities while improperly dressed, as while not wearing shoes.

The Sixth Circuit held that there are sensible practical reasons to justify a rule prohibiting customers from using the Library while barefoot. Thus, not only did the Library have the abstract legal authority to adopt a "Customer Code of Conduct Policy," but it was not irrational for the Library to ban patrons who arrive shoeless. That choice by the Library was recognized, despite Plaintiff's arguments to the contrary, to be a sensible one. Collateral estoppel bars relitigation of that factual question, even assuming Plaintiff s framed it sufficiently in this new lawuist by arguing it without pleading it in his Amended Complaint. Whether the Library Board could have better served the public by taking an alternative approach on barefooted patrons is not a question for this Court to decide in the first instance. Mr. Neinast's submission of various Affidavits and letters suggesting that people can function in public places throughout modern American society without shoes must be addressed to the Library, but merely because such arugments can be made does not invalidate the policy choice which the Library Board's duty under R.C. §3375.40(H), at least insofar as their choices violate no constitutional rights and are not wholly irrational.


For the reaons set forth above, the Court GRANTS the Motion for Summary Judgment of the Library filed April 28, 2005, and DENIES the Motion for Summary Judgment of Robert A. Neinast filed April 29, 2005.

Pursuant to Civ. R. 57, the Court finds and declares that the "Customer Code of Conduct Policy" adopted by the Board of Trustees of the Defendant Columbus Metropolitan Library on August 26, 2004, effective September 1, 2004, is statutorily authorized by R.C. § 3375.40, and that patrons desiring to use the Columbus Metropolitan Library must comply with the provision in that "Customer Code" prohibiting "Improper dress" which is defined to include bare feet. Further, that provision of the Customer Code has a rational basis in fact, and does not intrude upon any Constitutional rights of the Plaintiff.

Consistent with this Decision, the Court is entering a Final Judgment terminating this case at Plaintiff's costs.