IN THE SUPREME COURT OF OHIO


Robert A. Neinast

Appellant,
v.
Board of Trustees of the Columbus
Metropolitan Library, et al.

Appellees.
:
:
:
:
:
:
:
:
:
:
:
 

On Appeal from the Franklin
County Court of Appeals,
Tenth Appellate District


Court of Appeals Case No. 05AP-668





________________________________________________________________________

MEMORANDUM IN SUPPORT OF APPEAL
OF APPELLANT ROBERT A. NEINAST
________________________________________________________________________

Robert A. Neinast (PRO SE)
8617 Ashford Lane
Pickerington, OH 43147
(614) 759-1601
neinast@att.net

APPELLANT, PRO SE


Philomena M. Dane (0044064) (COUNSEL OF RECORD)
Heather L. Stutz (0078111)
Squire, Sanders & Dempsey L.L.P.
1300 Huntington Center
41 South High Street
Columbus, OH 43215
(614) 365-2700
Fax No. (614) 365-2499)
pdane@ssd.com

COUNSEL FOR APPELLEES, BOARD OF TRUSTEES
OF THE COLUMBUS METROPOLITAN LIBRARY
AND PATRICK A. LOSINSKI



TABLE OF CONTENTS

  Page
EXPLANATION OF WHY THIS CASE INVOLVES A
SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS
A CASE OF PUBLIC OR GREAT GENERAL INTEREST
1

STATEMENT OF THE CASE AND FACTS
5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
6

Proposition of Law No. 1 A library unconstitutionally usurps the
legislative power when it promulgates police power health and
safety regulations, since the R.C. 3375.40(H) authorization
to make and publish rules for the "proper operation and
management" of the library contains no intelligible principle
supporting such regulations; nor are such regulations supported
by any other part of the Revised Code.
6

Proposition of Law No. 1 Well-established precedent cannot be ignored
merely because the subject matter to which the precedent applies
involves otherwise-innocuous behavior that many perceive as
idiosyncratic.
11

CONCLUSION
15

PROOF OF SERVICE
15


 
Appx. Page
APPENDIX  

Opinion of the Franklin County Court of Appeals
(January 27, 2006)
1

Judgment Entry of the Franklin County Court of Appeals
(January 27, 2006)
9





EXPLANATION OF WHY THIS CASE INVOLVES A
SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS
A CASE OF PUBLIC OR GREAT GENERAL INTEREST


This cause presents the substantial constitutional issue of whether a library, and hence other similar governmental entities, may make police power health and safety regulations without explicit authorization from the legislature. In other words, the issue is whether such rule-making is an unconstitutional usurpation of the legislative power. This cause also presents the issue of great general interest as to whether a reasonably competent pro se litigant has a legitimate chance of receiving justice through the judicial system, or whether the system is just so slanted against pro se litigants that those without the resources to afford legal representation are forced to accept the unlawful actions of governmental officials.

In this case, the court of appeals decided that the language of R.C. 3375.40(H), which says that the board of trustees of a library may "make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, . . .", included a grant to make police power regulations for the library, in that this specific statutory language provided an intelligible principle by which that delegation of authority could be established. In this instance, the rule that the Columbus Metropolitan Library promulgated required that all patrons entering the library wear shoes with heels with a height of less than 2½ inches. The Library stated that the purpose of the rule was "to protect the health and safety of Library patrons" who might otherwise be injured due to the dangers posed by wearing high heels. To support this proposition, the Library cited a number of court cases in which persons wearing high heels or platform shoes were injured due to the height of the heel1  and demonstrated that the Library contained a number of possible hazards to wearers of high heels, such as occasional water on the floor, stairs with a raised tread, and mats with edges that might catch the unwary. Under the minimal scrutiny of the rational basis standard ("rationally related to a legitimate governmental interest") such a rule was inherently "reasonable," and upheld on those grounds.

This decision of the court of appeals threatens long-standing precedent of this Court that the legislative power resides solely in the legislature, and that any delegation of that power must be done through the establishment by the legislature of an intelligible principle or discernible public policy declaration to which the administrative body must conform, and through such guidelines and standards as are practical. The core of the decision of the court of appeals was that

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(H).

Opinion, 2006-Ohio-287, at ¶17. The court of appeals made no attempt to explain exactly how it is that such a phrase provides an intelligible principle for the promulgation of police power health and safety rules. It "discovered" the "intelligible principle" by mere fiat. This Court has never endorsed such a sparse description as an intelligible principle. When the court of appeals did so, it allowed the Library to usurp the legislative power.

Such a decision will reverberate loudly throughout Ohio’s legislative and court system. It says that all that is required for a full delegation of the legislative power is some permutation of the key phrase "proper operation and management." Such a result could certainly lead to an economy of legislative action. Instead of using R.C. 3375.40 to specify exactly how libraries are to spend their money, all the legislature needed to have done was to say that the libraries had the power to spend money in the "proper operation and management" of the library. Or, in the different area of mines, instead of the analysis used in Redman v. Ohio Department of Indus. Rel. (1996), 75 Ohio St.3d 399, all the legislature needed to have done was to specify that rulemaking could be done for the "proper operation and management" of mines throughout Ohio. The widespread adoption of this approach would signal a sea change in determining when administrative bodies have usurped the legislative function.

This case also has important public interest implications in that it regards the assumption by an administrative body of the police power. The police power is something special; it is not about the mere functioning of some administrative body. Even Ohio’s Constitution is careful to distinguish when the police power is granted and when it is not: it is granted only in addition to the power of self-government, as with the state legislature and with municipalities. The legislature has further, and explicitly, delegated limited police power (in addition to limited self-government) to limited home-rule townships. R.C. Chapter 504. Yet the court of appeals has acquiesced in this case to the assumption of the police power by an administrative body without any sort of explicit (or even implicit) grant. Furthermore, when the legislature does grant portions of the police power to administrative agencies, it most explicitly does so in the area of expertise of that administrative agency. In this case, the Library has assumed the police power in the area of footwear safety, an area with no relation to its area of expertise. It is most important for this Court to make clear that administrative bodies cannot assume the police power without clear authorization. Again, the widespread adoption of this new precedent would have serious implications for all future determinations of the delegation of the legislative power.

It is probably not much of an exaggeration to state that the plaintiff in this case, Mr. Neinast, is a bit idiosyncratic. He prefers to wear flashy platform shoes with 2 inch soles and heels that sometimes exceed 3 inches. Such shoes are rather uncharitably often referred to as "pimp shoes." His insistence on wearing these shoes to the library resulted in his being presented with a one-day eviction notice, and, ultimately, to the institution of this lawsuit. Note, however, that there was never any allegation that his choice of footwear disturbed or disrupted the Library in any fashion—the Library continues to claim that only the issue of safety is germane to its rule.

Nonetheless, both the trial court and the court of appeals committed obvious error by completely ignoring all related precedent and by accepting the phrase "proper operation and management" as an intelligible principle laid down by the legislature allowing police power safety regulations by a library. In A Changing Landscape, Ohio Courts Futures Commission Report, May 2000, one of the major recommendations (p. 41) of the Commission was "Ensuring Meaningful Access for the Self-Represented." Under the Discussion/Rationale for that recommendation, the Commission goes on to say, "Courts must also be mindful of the rights of opposing parties and the responsibility of the court to see that justice is provided to all." When such obvious error occurs and goes uncorrected, the circumstances involved in this case raise the serious and important public question of whether a competent (if idiosyncratic) pro se litigant can receive justice in this state’s judicial system. Allowing such error to stand undermines the public trust in the judicial system—it sends the message that legal precedent is worthless and can be ignored when it applies to those who are odd or idiosyncratic in some way, or otherwise powerless. Even if the issue of footwear choice might seem trivial, the underlying legal issues regarding legislative delegation to administrative bodies, assumption of the police power, and equitable results from the judicial system are not trivial whatsoever. The importance of the issue of whether pro se litigants can receive justice in Ohio courts has been recognized by the creation of the Ohio Supreme Court’s Task Force on Pro Se and Indigent Litigants—the real question is whether pro se issues will ever get beyond the study stage and the promised justice will ever actually be provided.

Finally, the sort of rule under challenge here is unique within governmental bodies. No other governmental entity has deigned to dictate footwear choices for its patrons. In fact, it is unique in using the police power to protect a person, not from the actions of another person, but merely from his or her own supposed folly. If the government really has such power over its citizens, then there is nothing preventing it from prohibiting wearing high heels anywhere on the streets, or prohibiting a person from engaging in other activity that exhibited the merest quantum of risk to that person.

In sum, allowing this precedent to stand would have wide ranging consequences to Ohio’s constitutional principle regarding the delegation of legislative authority and to Ohio’s judicial system. This court should grant jurisdiction.


STATEMENT OF THE CASE AND FACTS


This case arose because appellant Robert A. Neinast delights in wearing flashy platform shoes everywhere. He has done so without problem in all sorts of places, including various governmental buildings throughout the state and country, and only ran into difficulty at the Columbus Metropolitan Library, which for some inexplicable reason has a rule requiring that patrons of the Library wear shoes with heels of 2½ inches or less. Mr. Neinast used the Library many times wearing his platform shoes and was not even noticed. However, on three occasions he was spotted by security personnel and told to leave "to correct the problem." The third time he was also given a one-day eviction notice.

Mr. Neinast sued in the Franklin County Court of Common Pleas, claiming, among other things, that his First Amendment right to receive information from the Library, a limited public forum, had been violated. Mr. Neinast also claimed that the rule had no basis in Ohio law, claiming that the Executive Director of the Library had no authority to make rules for patrons. The Library removed the case to Federal Court and defended the case by arguing that the rule served the purpose of protecting the health and safety of its patrons by protecting them from the dangers of wearing shoes with high heels (slipping hazards, severe ankle sprains, etc.) and also by protecting the Library from possible lawsuits from those patrons who might injure themselves in the Library while wearing high heels. The Federal District Court held for the Library. On appeal, the Sixth Circuit Court of Appeals upheld the District Court. Interestingly, while acknowledging that the library was a limited public forum and that the footwear rule was a time, place, and manner restriction on receiving speech, that Court of Appeals decided that the rational basis standard was the correct standard under which to analyze the rule, and that under that relaxed standard, high heels could possibly contribute to injury or lawsuits. The rule was thus found to be "reasonable." However, neither federal court addressed the claim regarding Ohio law. The United States Supreme Court denied certiorari.

In June of 2004, Mr. Neinast initiated the present suit to have the Ohio law claims heard. Of course, collateral estoppel prevents Mr. Neinast from rearguing the federal court finding of the reasonableness of the footwear rule. In late August of 2004, the Columbus Metropolitan Library Board of Directors officially passed a footwear rule, since the previous one promulgated by its Executive Director (and left unanalyzed by the federal courts) was obviously flawed: "[a] resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body." O.R.C. 121.22(H). Neinast thus moved to amend his complaint to address the new rule, and in doing so he also pared the amended complaint down to a request for a declaratory judgment. In late September, Judge Miller inexplicably released the motion, removing it from the list of active motions; it was only after Mr. Neinast inquired as to the motion’s status (this occurred after Judge Miller retired and the newly-elected Judge Frye replaced her) that the motion to amend was re-activated, and then granted. However, while accepting the amended complaint, Judge Frye also stated

even if he is right on the law, the time and funds he is causing to be expended to defend the Library Board's authority could not be much better spent on other proper public purposes in this time of increasingly tight State and local budgets. (Emphasis added.)

Journal Entry and Amended Case Schedule in Light of Amended Complaint, March 14, 2005, at p. 5. In other words, even if Mr. Neinast was correct that the Library’s actions were an unconstitutional usurpation of the legislative power, it was more important that funds not be spent than that the Library be forced to comport with the law.

Upon cross-motions for summary judgment, and without any hearings, the trial court ruled that "proper operation and management," along with "control and management" in R.C. 3375.06 called for a broad interpretation of the grant of power and granted the Library’s motion. Upon appeal, the Franklin County Court of Appeals upheld the trial court’s opinion, stating, as already noted, that the phrase "proper operation and management" contained the "intelligible principle" required by this Court’s holding in Blue Cross of N.E. Ohio v. Ratchford (1980), 64 Ohio St.2d 256, syllabus.


ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW


Proposition of Law No. 1: A library unconstitutionally usurps the legislative power when it promulgates police power health and safety regulations, since the R.C. 3375.40(H) authorization to make and publish rules for the "proper operation and management" of the library contains no intelligible principle supporting such regulations; nor are such regulations supported by any other part of the Revised Code.


Both the trial court and the court of appeals committed clear error when they decided that the phrase "proper operation and management" provided the Columbus Metropolitan Library with the legislative delegation of authority to create a police power health and safety footwear requirement. "The 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), 1995-Ohio-337, 73 Ohio St.3d 530, 535. "A statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform." Ratchford, 64 Ohio St.2d 256, syllabus. Even when "such standards are ‘impossible or impractical to provide,’ . . ., a regulatory authority must still rest upon a discernible public policy declaration by the General Assembly of the need of such regulations in the statutes it has enacted and the delegation of authority to the agency for implementation." Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379. Furthermore, when a grant of power is made, both the intention of the grant and its extent must be made clear. Additionally, if there is any doubt as to the grant, "that doubt is to be resolved not in favor of the grant but against it." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172 at ¶40.

R.C. 3375.40(H) is the statute that defines the rulemaking authority of library boards. It says, in its entirety, that a board may

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;

It seems incredible that the lower courts found an "intelligible principle" or a "discernible public policy declaration" regarding police power safety regulations in that statutory text. An "intelligible principle," by definition, must provide an easily understood method by which one could decide whether a potential rule is permitted or not. The mere word "proper" cannot do so; that word is unable to provide the necessary specificity required to avoid the unconstitutional usurpation of the legislative power. Nor can the language of R.C. 3375.40(H) provide a "discernible public policy declaration" by any reasonable definition of the phrase, unless that declaration is that the delegation is limitless—and thereby an unconstitutional delegation of authority on its face.

The lack of any intelligible principle in R.C. 3375.40(H) does not mean that the statute is unconstitutional or that a library cannot control its patrons’ behavior. It only means that one must look to other parts of the Revised Code to provide the "intelligible principle" for such rules. Support for patron behavior rules (the policy declaration) can be found in R.C. 3375.82, which sets forth the goal of providing essential library services to all Ohio residents. Thus, rules restricting disruptive patrons or patrons who damage library resources are clearly allowed, since such patrons disrupt that goal of providing essential library services.. However, regarding the Library's distaste for Mr. Neinast's footwear footwear choice, the library specifically disclaimed that Mr. Neinast’s footwear was disruptive—it claims the rule is related purely to safety considerations. Neither the Library, the trial court, nor the court of appeals pointed to any other section of the Revised Code to support their "finding" of an intelligible principle supporting rules regarding patron health and safety. And, of course, they cannot.

The lack of a discernible public policy declaration is the core issue in this case. Whether the regulation is reasonable is immaterial. In Burger, 42 Ohio St.2d at 386, the lack of delegation of authority precluded even looking at reasonableness ("Inasmuch as we hold that the commission was without authority to adopt the rule, we do not reach the issue of reasonableness."). In D.A.B.E., supra, a no-smoking rule is entirely "reasonable" in that it protects against secondhand smoke, but the issue in that case was whether the legislature had authorized Boards of Health to create such rules—it had not. Based on the result of D.A.B.E., it is highly unlikely that even a Board of Health could create a footwear rule (unless directly related to some specific disease epidemic). Yet, the court of appeals in the instant case found such a power in library boards. This is obvious error that must be reversed.

The lower courts also ignored the special nature of the police power. (There can be no doubt that a footwear rule created for the safety of the wearer is a police power health and safety rule.) Significantly, even the Ohio Constitution carefully distinguishes between local self-government and police power regulations. See Section 3, Article XVIII, Ohio Constitution. The legislature echoed this important distinction when it granted home-rule townships limited self-government. See R.C. 504.04(A)(1) and (2). Whatever police power townships have is strictly limited to that expressly delegated to them by statute. Bd. of Bainbridge Twp. Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, 108. A township clearly does not have the power to enact a footwear rule for its territory. Yet, again, the court of appeals ruled that libraries have had such powers delegated to them without the slightest mention of the police power in the statutes. This is obvious error that must be reversed.


Proposition of Law No. 2: Well-established precedent cannot be ignored merely because the subject matter to which the precedent applies involves otherwise-innocuous behavior that many perceive as idiosyncratic.


In reality, the Library did not ban high heels. The particulars of this case as described so far were altered to illustrate the key point of this case. The Library’s footwear rule actually prohibits bare feet (it prohibits "[i]mproper dress, including bare feet and no shirt"), and Mr. Neinast regularly goes barefoot nearly everywhere, including public buildings of all sorts. If, while reading about high heels, the reader of this memorandum had been convinced that the Library Board had usurped the legislative power, but is now thinking, "But of course they can ban bare feet; bare feet are different," then the reader has succumbed to the same sort of (unconscious) bias that the lower courts did. For the issues that arise from the essential facts are the same.2  If the Library does not have the power to make police power regulations, then it matters not one whit whether that is applied to platform shoes or to bare feet.

As noted supra, there have been a number of peculiar incidents with this lawsuit that bring into question whether a reasonably competent pro se litigant can receive justice, particularly if the issue is one that might be seen as idiosyncratic. Among others, the federal courts neglected to rule on the state law issues (even though the issue regarding the lack of validity of the rule because it was not passed by the board was pretty cut-and-dried), forcing Mr. Neinast to reinitiate his suit and overcome res judicata issues; at the trial court level, Mr. Neinast’s motions were inexplicably released and removed from the active motion lists; at the trial court level, Mr. Neinast (but not the Library) was admonished for continuing the lawsuit, as if usurpation of the legislative power was non-consequential; and, in the end, both the trial court and the court of appeals found an "intelligible principle" (without identifying just what that "intelligible principle" was) in the phrase "proper operation and management." It seems unlikely that this would have occurred if, instead of being about bare feet, this case had been about making rules for operating mines in the state, and it had been prosecuted by regular attorneys.

There is even one other example of how a reasonably competent pro se litigant was marginalized. In the course of the litigation, statutory references to the "control and management" of various libraries were made. The Library referred to R.C. 3375.06 in its briefs, which pertains to a "county free public library." Mr. Neinast, in his briefs, referred instead to R.C. 3375.22, which pertains to a "county district free public library." The court of appeals, in choosing which of the statutes to cite, automatically went with the Library over the pro se litigant, and cited R.C. 3374.06. Opinion, at ¶9. Yet, again, this is obvious error, for the Columbus Metropolitan Library is manifestly a county district free public library. This is most easily seen by going to its website and looking at the page highlighting its Library Board.3  It is easy to see that it has the seven board members of a county district free public library (R.C. 3375.22), and not the six board members of a county free public library (R.C. 3375.06). This is of course harmless error, but it indicates how the larger, harmful error might have arisen.

Now, it may be that such peculiarities are actually part of the normal judicial process and regularly occur whether the litigants are pro se or represented. Regardless, they raise suspicions. Of course, all pro se litigants who lose are utterly convinced that the system is stacked against them. The ultimate question for evaluating that issue in this case is, if the Library had really implemented, not a barefoot rule, but a 2½-inch-heel rule, would that rule have been upheld by the courts every step of the way, or would the rule have been invalidated?

The bottom line is that there is simply no part of existing law that says that exceptions to well-established precedent may be made because a party is considered idiosyncratic, or because the judge thinks a lawsuit might be a waste of money, or because a party is acting pro se. Judges are supposed to be even-handed and to guard against unintentional biases. Naturally, none of this provides grounds for reversal, but if this Court accepts jurisdiction in this case, this provides a forum for an appropriate admonishment to the judicial system that care should be taken under these sorts of circumstances.


CONCLUSION


For the reasons discussed above, this case involves a substantial constitutional question and issues of important public and general interest. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. As an alternative and due to the obvious error, the appellant also suggests that a summary reversal might be appropriate.


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


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, postage prepaid upon Philomena M. Dane and Heather L.Stutz, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this 10th day of March, 2006.





Footnotes:

1. Jones v. Hyatt Corporation of Del., 681 So.2d 381 (La.App.4 Cir. 1995/1996); Choyce v. Sisters of the Incarnate Word, 642 So. 2d 287 (La.App.Cir.2 1994); Burns v. Schnuck Markets, 719 S.W.2d 499 (Mo.App.Div.3 1986); Brown v. McDonald's Corp., 428 So. 2d 560 (La. App. 4 Cir. 1983); Johnson v. City of Chicago, 431 N.E.2d 1105, 103 Ill. App.3d 646 (Ill.App.1 1981); Ryan v. City of Chicago, 329 N.E.2d 305, 28 Ill. App.3d 743 (Ill.App. Dist.1 1975); Tolman v. Wieboldt Stores, Inc., 73 Ill. App.2d 320, 219 N.E.2d 560 (Ill.App. Dist.1 1966); Blumberg v. M. & T. Inc., 34 Cal. 2d 226, 209 P.2d 1 (Cal. 1949). [Back]

2. To fully correct the record: To support its rule, the Library cited three cases in which persons, while either outdoors or in a shower, were injured while barefoot. It also produced Library records with supposed possible hazards to bare feet, including urine and feces on its floors, and a broken chair. Based on that record, the federal courts produced their ruling on "reasonableness." Mr. Neinast goes barefoot practically everywhere. Of nine visits to the Main Branch of the Library, he was only even noticed three times. He used the Reynoldsburg branch barefoot without being noticed over twenty times. He continues to this day to use the Pickerington Library, as it has no rule requiring footwear. Among government facilities that he uses without challenge or difficulty are the Ohio Statehouse, DMV offices, highway rest areas, COTA buses, the Smithsonian Institution, Post Offices, the U.S. Capitol Building, the Franklin County Courthouse, the Kinneary Courthouse in Columbus, the Stewart Courthouse in Cincinnati, and numerous airports. The Columbus Metropolitan Library is the sole exception in not providing him access. The Library does disclaim that Mr. Neinast’s bare feet disturbed anybody in the Library and there is no evidence that he ever disturbed the library environment in the least; the Library continues to claim that the rule exists purely for safety considerations. The record in this case includes an affidavit from the Columbus Board of Health stating that there is no regulation requiring the wearing of shoes in public buildings; any suggestion to the contrary is merely a popular misconception that many, including previous courts, may have bought into.. The true reason for the Library's rule is probably found in a letter from the Executive Director of the Library asking for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." Of course, there is no public policy declaration supporting that, either. [Back]

3. http://www.cml.lib.oh.us/ebranch/about_cml/sel_library_board.cfm [Back]