I. Introduction

Defendants the Board of Trustees of the Columbus Metropolitan Library and Patrick Losinski request that this Court grant them summary judgment. Because the Library has not demonstrated that they are entitled to judgment as a matter of law, its Motion for Summary Judgment should be denied.

II. Facts

The Library's description of the facts is adequate, with the following clarifications:

The Library acknowledges that it was Executive Director Larry Black who "approved and promulgated the [barefoot] regulation"^Q> under the Eviction Procedure, and that "the Board had authorized the regulation through its duly appointed director."^Q> (Defendants' Motion for Summary Judgment, pp. 3-4.) The Board did not adopt the barefoot rule, but instead the Library claims that it delegated that authority to Mr. Black. (See the Eviction Procedure, Interrog. #9, Exh. 2, "Approved by: Executive Director"; and November 30, 2000 letter from Mr. Black to Mr. Neinast, Interrog. #13, Exh. 3, "The authority to make such decisions has been delegated to me by the Board of Trustees of the Columbus Metropolitan Library."^Q>) The Ohio Revised Code Section 121.22(H) is quite clear: "A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body."^Q>) The Board cannot delegate its rulemaking authority. All of the actions against Mr. Neinast when he used the Library barefoot were ultra vires and contrary to law. The Library may claim that "the Board [is] the entity with more practical knowledge of what rules are necessary for the proper operation and management of the Library"^Q>) (Defendants' Motion for Summary Judgment. p. 10), but the Library did not have much knowledge regarding the authority of library boards to delegate rulemaking under Ohio law. Nor do they appear to know that a barefoot rule is not a necessary part of running a library. See Callender Affid., Plaintiff's Motion for Summary Judgment, Attach. 3.

The Library selectively quotes from Mr. Neinast's letter to Mr. Losinski. A complete copy of the letter is included in Attachment 1, May 3rd Neinast Affid., Exhibit A. The letter made a sincere attempt to avoid any further litigation and expenses to the Library. Mr. Losinski never replied to that letter; it appears that Mr. Losinski was more interested in continuing to operate the Library ultra vires.

The Library mentions the June 10, 2004 incident in which Mr. Neinast entered the Library wearing sandals (flip-flops), but fails to include relevant specifics. Mr. Neinast wore the sandals whenever he was walking in the Library; he only removed them while sitting in an easy chair reading. (Neinast Affid. ¶18). There could be no possible issue of "health and safety" or with "fiscal integrity" in that situation, yet the rule was nonetheless enforced. This shows the inconsistency of the Library's rationale.

III. Law & Argument

A. The Library Board of Trustees Has Not Been Granted the Power to Adopt the Barefoot Rule

The Library has selected the wrong standard for evaluating the authority of the Board of Trustees to adopt the barefoot rule contained in the new Customer Code of Conduct Policy. The Library relies on In re Appeal of Buckeye Power, Inc., 42 Ohio St. 2d 508, 330 N.E.2d 430 (1975) and Woodbridge Partners Group, Inc. v. Ohio Lottery Comm., 99 Ohio App. 3d 269, 650 N.E.2d 498 (Franklin Cty. 1994) for the proposition that all that is required is that their barefoot rule be reasonable. The correct standard is expounded in D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health, 96 Ohio St.3d 250 (Ohio 2002): "It is well settled that an administrative agency has only such regulatory power as is delegated to it by the General Assembly. Authority that is conferred by the General Assembly cannot be extended by the administrative agency."^Q> Id. at 259. Also, "In construing such grant of power, particularly administrative power through and by a legislative body, the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it."^Q> (Emphasis added.) Id. D.A.B.E. examined whether local boards of health had the authority to enact smoking bans. Despite a grant of authority saying, "The board of health of a general health district may make such orders and regulations as are necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances,"^Q> the Ohio Supreme Court stated

There is no express grant of power in R.C. 3709.21, or elsewhere, allowing local boards of health unfettered authority to promulgate any health regulation deemed necessary. Since there is no express delegation, it follows that there is no implied authority for petitioners to adopt the smoking ban at issue. Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly.^Q>

Id. A regulation requiring shoes in a public building is a general policy issue, and the Library can only develop and administer policy already established by the General Assembly.

D.A.B.E. is most similar to the instant case. There is no express grant of power in O.R.C. § 3375.40(H) allowing library boards unfettered authority to promulgate any regulation deemed necessary. The Library claims that the barefoot rule is a health and safety regulation, but they have most definitely not been granted express authority to make health and safety regulations (in fact, D.A.B.E. strongly suggests that not even a local board of health has the power to make a barefoot regulation, unless, for instance, it were necessary to stop some epidemic, for which they have been granted power, that happens to be associated with bare feet). Deciding to exclude patrons from public libraries for a non-disruptive¹  choice of dress sets public policy without legislative approval. The Library needs to do more than just point to a rules-enabling statute to find their grant of authority. Despite Buckeye Power and Woodbridge, D.A.B.E. is the most recent statement of the Supreme Court on this issue; D.A.B.E. is controlling.

Buckeye Power and Woodbridge are also distinguishable in that they address true administrative agencies. The Public Utilities Commission (and the Power Siting Board) of Buckeye Power is a regulatory body. It must submit its rules to the legislative Joint Committee on Agency Rule Review, and publish its rules in the Administrative Code. O.R.C. § 111.15. The Ohio Lottery Commission of Woodbridge is also a one-of-a-kind state agency with legislative oversight. The Library board is subject to no oversight at all. Strictly speaking, libraries are not administrative agencies at all, but merely "quasi-corporations." See, e.g., regarding another quasi-corporation, a local board of education, Bright Local School Dist. Bd. of Edn. v. Hillsboro School Dist. Bd. of Edn., 122 Ohio App.3d 546, 552 (Highland Cty. 1997) ("However, it does not follow that a board of education must be viewed as a governmental agency. While boards of education are considered agencies of the state for purposes of organizing, administering, and controlling the public school system, they are also separate and apart from the usual political and governmental functions of other subdivisions of the state."^Q>) They, like local boards of health, are "creatures of statute" that only have such powers expressly granted them by the General Assembly. 1989 Op. Att'y Gen. No. 89-031. Thus, the standards of D.A.B.E. are most applicable in the instant case.

Moreover, the instant case is distinguishable from Buckeye Power and Woodbridge in another way: those two cases looked at the reasonableness of the regulations because the grant of power was already clear. In the instant case, as in D.A.B.E., it is the scope of the grant of power that is being questioned. And for that the presumption is against the grant. It makes no difference if a regulation is reasonable if the legislature has not granted the board the power to make such a regulation. As argued in Plaintiff's Motion for Summary Judgment, an immunization regulation, while reasonable, is not within the power of a library board; the General Assembly has delegated that power elsewhere. Similarly, there is no indication that the power to make health and safety regulations of any sort have been delegated to library boards.

The Library's reliance on Weber v. Board of Health, 148 Ohio St. 389, 74 N.E.2d 331 (1947) is similarly misplaced. Weber specifically found that the board there "transcend[ed] its administrative rule-making power and exercise[d] legislative functions in violation of . . . the Constitution of Ohio."^Q> (Syllabus, paragraph 3.) As the Ohio Supreme Court explained in D.A.B.E.:

Furthermore, we disagree with petitioners' reliance on paragraphs one and two of the syllabus of Weber v. Butler Cty. Bd. of Health (1947), 148 Ohio St. 389, 35 O.O. 351, 74 N.E.2d 331, in regard to the first certified question. Petitioners contend that Weber stands for the proposition that R.C. 3709.21 contains a legislative mandate that boards of health have broad authority and wide latitude to make regulations necessary to protect the public health, regardless of the nature of the harm.

Weber concerned G.C. 1261-42, the substantially similar precursor to R.C. 3709.21. 108 Ohio Laws, Part I, 246. In paragraphs one and two of the syllabus in Weber, the court found G.C. 1261-42 to be a valid and constitutional enactment. The court found that G.C. 1261-42, despite lacking any standards for guidance from the General Assembly, was constitutional because it was a police regulation necessary for the protection of the public health and that adopting specific standards for guidance would defeat the legislative objective sought to be accomplished. Weber at paragraphs one and two of the syllabus.^Q>

D.A.B.E., 96 Ohio St.3d at 257. The Library can point to no expressed legislative objective that their rule accomplishes. Furthermore, the Library can point to no expressed legislative language granting them, a mere quasi-corporation, police powers. The D.A.B.E. Court continues:

We do not dispute that R.C. 3709.21 is a valid and constitutional enactment. However, our concern under the first certified question is not the constitutionality of R.C. 3709.21. Our concern is whether any section of the Revised Code authorizes a local board of health to adopt regulations that prohibit smoking in public places. In any event, we do not view Weber as interpreting G.C. 1261-42 to confer the level of regulatory authority that petitioners contend R.C. 3709.21 does. (Emphasis added.)

The issue in Weber was whether the board of health of a general health district had the authority to adopt a resolution with regard to the transportation of garbage in Butler County and the regulation of hog pens and piggeries. Although the court concluded that the resolution was infirm on other grounds, it also found that G.C. 1261-42 did authorize the local board of health to regulate the transportation and use of garbage for animal feeding because such practices tended to create nuisances. However, while not cited in the majority opinion, there was separate statutory authority that gave local boards of health the power to abate nuisances and adopt sanitary controls. Weber, 148 Ohio St. at 403, 35 O.O. 351, 74 N.E.2d 331 (Zimmerman, J., dissenting). G.C. 1261-26 stated: "The district board of health may also provide for the inspection and abatement of nuisances dangerous to public health or comfort, and may take such steps as are necessary to protect the public health and to prevent disease." 108 Ohio Laws, Part II, 1088, predecessor of R.C. 3709.22. In addition, G.C. 4420 required the board of health of a municipality to abate all nuisances within its jurisdiction. Furthermore, G.C. 4421 authorized boards of health to "regulate the location, construction and repair of yards, pens and stables, and the use, emptying and cleaning thereof." See now R.C. 3707.01. There are no such statutory provisions that could be construed as authorizing petitioners to enact the regulation at issue herein.^Q> (Emphasis added.)

Id. There simply are no statutory provisions that could be construed as authorizing the Library to enact their barefoot regulation. The Library is legislating with its barefoot rule.

The Library's reliance on In Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271, 7 N.E.2d 220 is similarly misplaced. In Matz, the Public Utilities Commission (a "true" state agency) had specifically been granted the power to make police power regulations related to safety ("The words `terms and conditions' include rules and regulations relating to safety on the highway . . ."^Q>; syllabus, paragraph 3). The discretion to be exercised (syllabus, paragraph 7) was specifically related to that grant of power. The Library has not been granted the power to make police regulations.

The Library also raises Mathis v. Cleveland Public Library, 9 Ohio St.3d 199, 459 N.E.2d 877 (1984) as support for their proposition that they have been granted the power to exclude patrons simply on the basis of their fear of lawsuits, and whatever amorphous fiscal impact that might have (Mathis removed the doctrine of sovereign immunity from libraries.). Regarding lawsuits, the Library said: "It is only logical that the Board would have the concomitant ability to establish rules for the protection of these same public funds."^Q>; (Defendants' Motion for Summary Judgment, p. 9.) Unfortunately for the Library, this is not true, unless specifically authorized by law.²  As Justice Holmes' partial dissent in Mathis pointed out (arguing that the ruling should be prospective only in nature):

Public libraries, as entities, do not possess statutory authority to purchase liability insurance. R.C. 3375.401 only allows the purchase of liability insurance for individuals acting in their official capacities as trustees, officers, and employees of the library.

Until the General Assembly acts to correct this situation, today's decision places the burden of liability upon tax dollars that had been budgeted for general library purposes. A library's board of directors will now be forced to withhold money which would otherwise have been used for educational purposes in order to protect against the possible devastating effects of future lawsuits.^Q>

Mathis, 9 Ohio St.3d at 203. The General Assembly corrected that situation in 1985; O.R.C. § 2744.08(A)(1) now contains such statutory authority.³  But, until it was enacted, no library had the broad authority to use the "make and publish rules for the proper operation and management" clause to spend money for that purpose (or however they wished).⁴  Similarly, the Library does not have the broad authority to use that clause as an excuse to exclude patrons based upon some sort of fiscal fear.⁵ 

The Library seems to think that all it needs to do to proclaim a grant of power from the legislature to make a safety regulation is to cite a few court cases with injuries, identify a possible sort of similar hazard in the Library, and to worry about safety and fiscal issues. (Def. Mot. Summ. J. pp. 8-9.) If the Library gets the whim to require hard hats on all their patrons, or buys into some sort of "barehead" myth, it could cite Coyle v. Staples, Inc., 268 A.D.2d 500, 701 N.Y.S.2d 445 (N.Y.App. 2000) (box fell from shelf in store and hit plaintiff on head), Neis v. National Super Markets, Inc., 631 S.W.2d 690 (Mo. App. 1982) (can fell from supermarket shelf and hit plaintiff on head), Kemper v. Builder's Square, Inc., 109 Ohio App.3d 127 (Ohio App. 1996) (post fell from shelf and hit plaintiff on head, chest, and leg), and Viirre v. Zayre Stores, Inc., et al., 571 N.E.2d 209, 212 Ill. App. 3d 505, 156 Ill. Dec. 622 (Ill. App. 1991) (dog beds fell from shelf and struck plaintiff on head), note that books do occasionally fall off of library shelves when people reach for them, and proclaim a fear of lawsuits. But the legislature has nowhere indicated an intent that library patrons be forced to wear mandatory safety equipment—and the Library is proclaiming shoes mandatory as safety equipment.⁶ 

In support of their barefoot rule, the Library is claiming that "[t]he 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."^Q> (Defendants' Motion for Summary Judgment, p. 8). But they have absolutely no legal duty to do so. And like any other creature of statute, they exceed the law if they assume such an additional duty. State, ex rel. Henderson, v. Schuele, 25 Ohio St.2d 179, 182 (Ohio 1971) ("The state board is a creature of statute. Its powers and its duties are established by statute. It can exercise no power or discretion not invested in it by statute. Consequently, it has only the duties imposed upon it by statute."^Q>) (Emphasis added.) Instead, since the Library's patrons are licensees, its only duty is to refrain from willfully or wantonly injuring them. Provencher v. Ohio Dept. of Trans., 49 Ohio St.3d 265 (1990).

The Library has not been granted a broad power to "make and publish rules for the operation and management" of the Library, but only the power to "make and publish rules for the proper operation and management" of the Library (emphasis added). As the D.A.B.E. Court said:

We must presume that in enacting a statute, the General Assembly intended for the entire statute to be effective. R.C. 1.47(B). Thus, all words should have effect and no part should be disregarded.^Q>

D.A.B.E., 96 Ohio St.3d at 254. They also said:

A basic rule of statutory construction requires that "words in statutes should not be construed to be redundant, nor should any words be ignored." Statutory language "must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required . . ."^Q> (internal citation removed.)

D.A.B.E., 96 Ohio St.3d at 256. "Proper" in this context has to mean that any rules must be quite specific to operating a library as a library, and have a direct bearing on the institution as a library, and not include general rules more properly promulgated by a board of health, legislature, or other government body. The barefoot rule does not properly fall within the Library's sphere of control.⁷ 

B. Res Judicata and Collateral Estoppel Do Not Prevent Neinast's Attack on the New Customer Code of Conduct

To prevail in asserting res judicata and collateral estoppel, the Library must prove "that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action."^Q> Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201 (1983) (emphasis added). Goodson goes on to say, "where there has been a change in the facts since a prior decision, which either raises a new material issue, or which would have been relevant to the resolution of a material issue involved in the earlier action, neither the doctrine of res judicata nor the doctrine of collateral estoppel will bar litigation of that issue in a later action."^Q> Id. Since the barefoot rule in the Code of Conduct was enacted in August of 2004, Neinast could not possibly have litigated that issue in his previous lawsuit of 2001, for which the U.S. Supreme Court denied certiorari in April of 2004. See Lakewood Congregation of Jehovah's Witnesses, Inc. v. Lakewood, 20 Ohio App.3d 338. 338-9 (Cuyahoga 1984) ("In 1975, Lakewood Congregation again applied for a permit, which was denied and affirmed by way of summary judgment, on the ground of res judicata. This court reversed, stating that a new controversy existed since there was a new ordinance and because the traffic patterns, a major factor in the previous decision to deny a permit, may have changed." ^Q> (emphasis added)). In the referenced Lakewood decision, that earlier court stated: "[S]ince the instant case is based on an ordinance different from the one in the prior action, the trial court's granting of summary judgment based on collateral estoppel was error." ^Q> Lakewood Congregation of Jehovah's Witnesses, Inc. v. Lakewood, 1977 Ohio App. LEXIS 7275, *10 (Cuyahoga 1977). See also Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 S.E. 2d 255) (1998) ("[I]t is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid." ^Q>).

Until the Board passed their new Code of Conduct, the issue of whether they had authority under O.R.C. § 3375.40(H) to issue a rule requiring that their patrons wear shoes simply was not ripe. See Fortner v. Thomas, 22 Ohio St. 2d 13, 14 (Ohio 1970) ("It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. The extension of this principle includes enactments of the General Assembly; questions which are moot; and administrative or quasi-legislative proceedings of administrative officers and agencies."^Q>) That issue was not justiciable at the time of Neinast's previous lawsuit, and therefore could not have been ruled upon by any court, and most especially not "on the merits". See Keller v. Columbus, 100 Ohio St.3d 192, 197 (Ohio 2003). ("In order to be justiciable, a controversy must be ripe for review."^Q>) At that time, before the existence of any Board-passed rule, whether the Board of Trustees had the power to enact a barefoot rule was clearly an abstract proposition. Thus, the issue of whether O.R.C. § 3375.40(H) authorizes a library Board of Trustees to enact a barefoot rule cannot be res judicata.

The Library makes much of the proposition⁸  that "Plaintiff's Amended Complaint from the federal suit specifically requested a declaration that the Board did not have the authority to issue a rule requiring patrons to wear shoes."^Q> (Def. Mot. Summ. J., p. 12) They further stress that the Library was granted summary judgment, at both the District Court and Appeals Court levels, "on all of Mr. Neinast's claims in their entirety."^Q> (Emphasis in original) (Def. Mot. Summ. J., p. 11). Neither federal court (Neinast v. Board of Trustees, 190 F.Supp.2d 1040 (S.D. Ohio 2002); Neinast v. Board of Trustees, 346 F.3d 585 (6th Cir. 2003)) said a word about the Board's authority or lack thereof. We must "presum[e] that the court performed the duty devolved upon it"^Q> (Lehmann v. Har-Con Corp., 39 S.W.3d 191, 197 (Tex. 2001)) and presume that the federal courts did not address this particular issue because it was not yet ripe. Ripeness is a jurisdictional issue, State ex rel Elyria Foundry Co. v. Industrial Commission, 82 Ohio St. 3d 88, 89 (1998), so neither court had jurisdiction. Thus, there was no decision on the merits and res judicata and collateral estoppel do not bar litigating this issue.⁹ 

IV. Conclusion

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, postage prepaid upon Philomena M. Dane and Johnathan E. Sullivan, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this  ____  day of May, 2005.

Footnotes: