IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert A. Neinast Plaintiff-Appellant,v.The Ohio Expositions Commission, et al.,
Defendants-Appellees.:
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Appeal No. 09AP-349
(Accelerated Calendar)
Trial No. 09-CV-01-1082
BRIEF OF APPELLANT ROBERT A. NEINAST
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
TABLE OF CONTENTS
Table of Authorities iii Assignment of Error Presented for Review vi Issues Presented for Review vi Statement of the Case and Facts 1 Argument 2 Introduction 2 1. The Trial Court did not limit its consideration to the four corners of the Complaint when it decided a Civ. R. 12(B)(6) motion to dismiss 2 2. Previous litigation is not only beyond the four corners of the complaint, it is not res judicata for this case, does not collaterally estop this case, and is not binding on this case 3 3. There are facts that will allow Neinast to obtain relief 5 4. If Chapter 991 of the Revised Code grants Expo plenary power to make police power regulations, then that grant is unconstitutional 6 5. The shoe regulation infringes personal liberty because it falls outside the scope of the police power and is arbitrary, capricious, and unreasonable 10 6. It is similarly premature to conclude that an injunction is precluded 14 Conclusion 15 Addendum Decision and Entry Appendix A Relevant Constitutional Provisions and Statutes Appendix B Plaintiff's Memorandum Contra Appendix C
TABLE OF AUTHORITIES
CASES:
Arnold v. Cleveland (1993), 67 Ohio St.3d 35 11 B&T Express, Inc. v. Public Utilities Commission of Ohio (1st Dist. 2001), 145 Ohio App.3d 656 6 Cincinnati v. Correll (1943), 141 Ohio St. 535 10, 11 D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172 7, 8, 10 Estate of Sherman v. Millhon (10th Dist. 1995), 104 Ohio App.3d 614 3 Ferron v. Fifth Third Bank, Franklin App. No. 08AP-473, 2008-Ohio-6967 1 Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389 4, 10 Holiday Homes, Inc. v. Butler Cty. Bd. of Zoning Appeals (12th Dist. 1987), 35 Ohio App.3d 161 6 Matz v. J. L. Curtis Cartage Co. (1937), 132 Ohio St. 271 8 Nagel v. Horner (4th Dist. 2005), 162 Ohio App.3d 221, 2005-Ohio-3574 4 Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585 4 Neinast v. Bd. of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas (C.P.C. No. 04CVH-06-6341) 6 Nelson v. Pleasant (4th Dist. 1991), 713 Ohio App.3d 479 3 Preterm Cleveland v. Voinovich (10th Dist. 1993) 89 Ohio App.3d 684 10 Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn. (1st Dist. 1994), 96 Ohio App.3d 558 8 State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44 10 Singleton v. Adjutant Gen. of Ohio, Franklin App. No. 02AP-971, 2003-Ohio-1838 2 State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530 7 State ex rel Long v. Council of the Village of Cardington (2001), 92 Ohio St.3d 54, 2001-Ohio-130 5 State v. Betts (Mun. Ct. of Franklin Cty, 1969), 21 Ohio Misc. 175, 252 N.E.2d 866 12 State v. Burnett (2001), 93 Ohio St.3d 419 4 State v. Craig (3rd Dist. 1969), 19 Ohio App.2d 29, 249 N.E.2d 75 12 State v. Stouffer (10th Dist. 1971), 28 Ohio App. 2d 229, 276 N.E.2d 651 12 Steele v. Hamilton County Community Mental Health Board (2000), 90 Ohio St.3d 176 12 Weinfeld v. Welling (5th Dist. 2005), 2005-Ohio-4721 11
CONSTITUTIONAL PROVISIONS AND STATUTES:
OTHER AUTHORITIES:
"Analysis of muscular fatigue and foot stability during high-heeled gait," by Amit Gefen, M. Megido-Ravid, Y. Itzchak, and M. Arcan, Gait and Posture, Vol. 15 (2002) pp. 56–63 14 "Barefoot Running," by Michael Warburton, SportScience, Vol. 5, No. 3, Sept-Dec 2001 14 "Conclusions Drawn from a Comparative Study of the Feet of Barefooted and Shoe-wearing Peoples", by Phil. Hoffman, M.D., The American Journal of Orthopedic Surgery, Vol. 3, No. 2, pp. 105-136 (October, 1905 13 "The Influence of Footwear on the Prevalence of Flat Foot: A Survey of 1846 Skeletally Mature Adults," by V. Sachithanandam and Benjamin Joseph, The Journal of Bone and Joint Surgery, Vol. 77-B, No. 2, March 1995 13 "Knee osteoarthritis and high-heeled shoes," by D. Casey Kerrigan, Mary K. Todd, and Patrick O. Riley, The Lancet (May 9, 1998) 14 "The Movement and the Sixties," by Terry H. Anderson, Oxford University Press (1995) 9 "Our Own Devices," by Edward Tenner, Alfred A. Knopf, New York (2003) 14 "Political Writings By Thomas Jefferson," edited by Joyce Appleby and Terence Ball, Cambridge University Press (1999) 11 "17 Common Foot and Footwear Myths," by Dr. William A. Rossi, Footwear News (August 9, 1999) 13 "Shod versus unshod: The emergence of forefoot pathology in modern humans?" by B. Zipfel and L. R. Berger, The Foot (December 2007), Vol. 17, Issue 4, pp. 205-213. 13 "Soft tissue and bone infections from puncture wounds in children," by Terese J. Laughlin, David G. Armstrong, Joseph Caporusso and Lawrence A. Lavery, The Western Journal of Medicine (Feb 1997) 14 "Survey in China and India of Feet That Have Never Worn Shoes", by Samuel B. Shulman, Pod.D., The Journal of the National Association of Chiropodists, Vol. 49 (1949), pp. 26-30 13
ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION TO DISMISS WHEN THE COMPLAINT STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
ISSUES PRESENTED FOR REVIEW All issues presented for review are related to the sole assignment of error.
The Trial Court did not limit its consideration to the four corners of the Complaint when it decided a Civ.R. 12(B)(6) motion to dismiss.
Previous litigation is not only beyond the four corners of the complaint, it is not res judicata for this case, does not collaterally estop this case, and is not binding on this case.
There are facts that will allow Neinast to obtain relief.
If Chapter 991 of the Revised Code grants Expo plenary power to make police power regulations, then that grant is unconstitutional.
The shoe regulation infringes personal liberty because it falls outside the scope of the police power and is arbitrary, capricious, and unreasonable.
It is similarly premature to conclude that an injunction is precluded.
Statement of the Case and Facts
This is an appeal of the March, 2009, decision and entry of the Franklin County Court of Common Pleas granting the motion to dismiss for failure to state a claim of the defendants, the Ohio Expositions Commission ("Expo"), et al.. Plaintiff/Appellant Robert A. Neinast ("Neinast") has attended the Ohio State Fair barefooted twelve times over the past twelve years, without difficulty. After being evicted from the Fair on August 9, 2008 for being barefooted, Neinast challenged Expo's rule (such rule appearing solely on a sign at the entrance to the Fair) requiring that all Fair participants wear shoes at all times. Neinast asked for a declaratory judgment that the shoe rule 1) was not authorized by any legislative enactment of the General Assembly and was an unconstitutional usurpation of the legislative function by Expo and its General Manager; and 2) violated Neinast's personal liberty guaranteed under the Ohio Constitution.
In lieu of answering, Expo moved for dismissal on two grounds: 1) lack of jurisdiction to award monetary damages because Expo is an agency of the state; and 2) failure to state a claim for which relief can be granted. Since Neinast did not ask for monetary damages, he is mystified as to why the jurisdictional issue was included, and he does not challenge the dismissal on those grounds. What Neinast is challenging here is the Civ. R. 12(B)(6) dismissal for failure to state a claim.
A trial court's disposition of a motion to dismiss for failure to state a claim under Civ.R. 12(B)(6) is reviewed de novo. Ferron v. Fifth Third Bank, Franklin App. No. 08AP-473, 2008-Ohio-6967, ¶5. Furthermore,
In considering a Civ.R. 12(B)(6) motion to dismiss, a trial court may not rely on allegations or evidence outside the complaint. Rather, the trial court may only review the complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling the plaintiff to recover. Moreover, the court must presume that all factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party.
Id. (Internal citations removed.)
Argument
Introduction
The Trial Court, in granting the motion for dismissal, stated that the reason was
The statues [sic] provides [sic] that the Fair operates with events and activities "consistent with the general welfare and interests of the people of the state, and includes such services as are necessary for the care and comfort or amusement of the public. The court agrees with defendants that the Fair's shoe requirement protects both the health and safety of Fair patrons and is consistent with the general welfare of fairgoers.
This decision makes findings of fact and conclusions of law that are totally inappropriate for a Civ. R. 12(B)(6) motion to dismiss for failure to state a claim for which relief can be granted. Such motions are limited to the face of the Complaint and are to be granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling the plaintiff to recover. There are no facts in evidence (and cannot be at this stage of any litigation) that "the Fair's shoe requirement protects both the health and safety of Fair patrons and is consistent with the general welfare of fairgoers."
1. The Trial Court did not limit its consideration to the four corners of the Complaint when it decided a Civ.R. 12(B)(6) motion to dismiss.
"In deciding a motion to dismiss filed prior to a responsive pleading, a trial court must limit its consideration to the four corners of the complaint." Singleton v. Adjutant Gen. of Ohio, Franklin App. No. 02AP-971, 2003-Ohio-1838, ¶18. The trial court did not do this. Instead, it relied on Neinast's previous barefoot litigation against the Columbus Metropolitan Library (see Expo's discussion of this in their Motion to Dismiss, pp. 2-3), even though the results of that litigation depended critically upon the specific statutes relating to libraries (not Expo) and relied on the specific fact pattern of particular hazards that the library was unwilling to ameliorate. Sticking to the Complaint, paragraphs 8 and 9 allege conditions that require facts to be confirmed or refuted. Further, paragraph 11 states that Neinast has evidence that bare feet are not unduly unsafe and are on a par, in terms of safety, with shoes. If true, combined with paragraph 12, this would truly make Expo's shoe policy arbitrary and capricious and violative of the Ohio Constitution.
2. Previous litigation is not only beyond the four corners of the complaint, it is not res judicata for this case, does not collaterally estop this case, and is not binding on this case.
As raised in Neinast's Memorandum Contra, p. 4, Expo says that it is "in essence arguing for dismissal pursuant to the doctrines of res judicata and or collateral estoppel." ( Expo's Motion to Dismiss, pp. 1, 2.) "The affirmative defense of res judicata is not properly raised in a Civ.R. 12(B)(6) motion because it requires reference to materials outside the complaint (i.e., the previous action upon which the defense is based) and, therefore, is a matter which should be raised on summary judgment." Estate of Sherman v. Millhon (10th Dist. 1995), 104 Ohio App.3d 614, 618, quoting Nelson v. Pleasant (4th Dist. 1991), 713 Ohio App.3d 479, 482. (Emphasis added.) Thus, it was error for the trial court to rely on that previous litigation.
Even if it had been proper to rely on that previous litigation, it would still be error. First, despite Expo's assertions, neither res judicata nor collateral estoppel apply. They cannot, for Expo and the Columbus Metropolitan Library are not in privity with each other. See the discussion of this in Neinast's Memo Contra, p. 5.
Second, the previous federal lawsuit is not binding precedent, since it addressed only federal issues. The holdings in that case were 1) a barefoot rule did not violate Neinast's First Amendment right to receive information; 2) that Neinast's Equal Protection rights under the U. S. Constitution, analyzed using the rational basis standard, were not violated; and 3) that Neinast's claims of lack of state authorization for the barefoot rule fell outside of their consideration. Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585. See the discussion in Neinast's Memo Contra, pp. 6-7. The instant case is based entirely on state law and critical differences between state law and federal law; there is nothing from that previous case that could be binding. For instance, the test of violations of personal liberty under the Ohio Constitution is not the rational basis test, but "[t]o be a valid police regulation it must have a clear and substantial relation to a proper object of the police power, and must not be arbitrary, discriminatory, capricious or unreasonable and must bear real and substantial relation to the subject sought to be obtained, namely, the health, safety, morals, or general welfare of the public." Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389, 397. The federal court made no such determination regarding any shoe rule and the Ohio Constitution.
Even if the Sixth Circuit Court of Appeals had ruled on state law, it would not be binding on this Court. Following State v. Burnett (2001), 93 Ohio St.3d 419, 422-24, and applying it to state law being interpreted by a federal court, the Court in Nagel v. Horner (4th Dist. 2005), 162 Ohio App.3d 221, 224, 2005-Ohio-3574, ¶7, said, "Not being bound by federal district court pronouncements on federal law, we leave the interpretation of state constitutional law to our state's highest court." (Emphasis added.)
Finally, the decision in the federal case was highly dependent on the fact pattern that was developed in that case, and the particular hazards that the Columbus Metropolitan Library allowed on their grounds, including blood on their walls and floors (which, if accurately determined to be hazardous, would also be a hazard when touched by bare hands), broken pieces of chair (which could be tripped over by both the barefoot and the shod), and defective doors (which caused injury to both a barefoot patron and a shod patron). Now, it may be that Expo is equally incompetent in maintaining their grounds in a safe manner and needs to rely instead on mandating that their patrons wearing obligatory safety equipment, but we certainly do not know that at this stage of the proceedings.
Moving to Neinast's case against the Library in state court, that decision is not binding either. That state case interpreted the specific language authorizing libraries to make rules for their operation and management. Expo's enabling language is completely different, and thus the conclusions from the Library case cannot be binding on completely different statutory language. The most critical difference is that the library statute, O.R.C. § 3375.40(H), specifically authorizes the library to make rules, while Expo is not authorized to make rules at all, O.R.C. § 991.03, except for rules to implement a credit card system (O.R.C. § 991.03(B)(8)) and rules to pay premiums to exhibitors (O.R.C. § 991.05).
3. There are facts that will allow Neinast to obtain relief.
Fact: The shoe rule was never adopted in an open meeting of the Ohio Expositions Commission. Expo admitted this in their Motion to Dismiss, p. 3. Of course, this has not yet been admitted in an Answer, because the premature granting of their motion to dismiss precluded even Answers. There is no doubt, legally, that never adopting the shoe rule in an open meeting voids that rule. O.R.C. § 121.22(H) is quite explicit: "A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body." Poor recordkeeping as an excuse for not finding the resolution adopting the shoe rule is precluded by State ex rel Long v. Council of the Village of Cardington (2001), 92 Ohio St.3d 54, 2001-Ohio-130.
Fact: The shoe rule does not appear in the Ohio Administrative Code. The General Assembly has set up an elaborate legislative structure to help ensure that state agencies do not exceed their authority. See the discussion in Neinast's Memo Contra, pp. 8-11. One of the principal purposes of this process is
to provide JCARR with an opportunity to review the substantive portions of new rules to determine whether the rules exceed the scope of the adopting agency's authority, conflict with other rules, or conflict with the legislative intent of the statute pursuant to which the rules are being adopted. R.C. 119.03(I)(1).
B&T Express, Inc. v. Public Utilities Commission of Ohio (1st Dist. 2001), 145 Ohio App.3d 656, 665. Expo clearly exceeds their authority when they create police power regulations without having been granted that authority by the General Assembly, for "the police power of this state is entrusted to the Ohio General Assembly." Holiday Homes, Inc. v. Butler Cty. Bd. of Zoning Appeals (12th Dist. 1987), 35 Ohio App.3d 161, 165. And the General Assembly, as part of overseeing such grants, requires that state agencies such as Expo go through the review process specified in O.R.C. § 111.15 and Chapter 119. If Expo had done so the rule would appear in the Ohio Administrative Code. Expo did not, and the rule does not. The rule has therefore never become effective ("The [Ohio Supreme C]ourt required strict adherence to R.C. 111.15's filing requirements." B&T Express, 145 Ohio App.3d at 667.)
4. If Chapter 991 of the Revised Code grants Expo plenary power, then that grant is unconstitutional.
Expo, in their Motion to Dismiss, p. 9, noted that the Franklin County Court of Common Pleas, in Neinast v. Bd. of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas (C.P.C. No. 04CVH-06-6341), at p. 9, said that the library statute provided plenary authority upon a board of trustees. The Appeals Court, in its opinion, never went so far as to use the word "plenary." However, Expo claims that their statutory authorization is "clearly an even more unambiguous grant of plenary authority than Columbus Metropolitan Library's legislative grant under R.C. 3375.40(H)." ( Expo's Motion to Dismiss, p. 10.) The trouble with this is that any delegation of the legislative power must be accompanied by standards and a public policy statement, and the more plenary a grant, the fewer standards by definition. "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), 73 Ohio St.3d 530, 535. (Emphasis added.) This principle is made clear in the syllabus of D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172: "Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly." Where is the public policy statement that Expo should act as an arbiter of health and safety issues? "[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." Where is the declaration by the General Assembly of the need to regulate footwear? Where is the delegation to Expo to do so? Not only that, since this rule impinges on an individual's right to control his own body and to make his own decisions about what he considers important to his own health and well-being, it requires the sort of balancing only the General Assembly can do: "In promulgating the Clean Indoor Air Regulation, petitioners engaged in policy-making requiring a balancing of social, political, economic, and privacy concerns. Such concerns are legislative in nature, and by engaging in such actions, petitioners have gone beyond administrative rule-making and usurped power delegated to the General Assembly." D.A.B.E. at 260. Also see the discussion in Neinast's Memo Contra at pp. 9-11.
The Ohio Constitution requires that rulemaking be confined within well-defined limits. As the Court of Appeals put it in Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn. (1st Dist. 1994), 96 Ohio App.3d 558, 561:
In the words of Justice Cardozo in his dissenting opinion in Panama Refining, which dissent is cited with approval in Matz, the statute must define policy so that the rule is 'canalized within banks that keep it from overflowing.' Matz [v. J. L. Curtis Cartage Co.], 132 Ohio St. at 280, 8 O.O. at 45, 7 N.E.2d at 225. When the rule is not 'unconfined and vagrant' it is a permissible delegation of legislative authority.
In other words, there must be some sort of way to determine from the enabling statute whether the agency has exceeded its authority. The whole purpose of public policy statements and standards is to be able to tell when a rule exceeds the authority of an agency. If any sort of rule at all can be promulgated, as occurs through a plenary grant, then how can rules be considered "canalized" or confined?
Consider the following hypothetical: What if Expo, without following the Open Meeting statute, without following O.R.C. § 111.15 and Chapter 119, and without any explicit statutory rulemaking authority, added another line on their entrance sign that said, "All patrons must wear a hat with a brim wide enough to shade their faces, long-sleeved shirts, pants or dresses that fully cover their legs, and closed-toed shoes" in order to protect those patrons from the dangers of sunburn and skin cancer? Would this Court (or any court) make excuses for Expo and uphold it? Would this Court find that Expo had been granted plenary authority to enact such a rule? If not, where are the banks of the canal? If so, what is the material difference between such a rule and a shoe rule? What public policy statement has the legislature made that distinguishes the two situations?
Neinast has evidence that "No Shirt, No Shoes, No Service" signs originated merely as a discriminatory reaction to barefooted hippies in the 1970s. As historian Terry H. Anderson put it in "The Movement and the Sixties," Oxford University Press (1995), p. 283:
Citizens reacted to the hippie threat in many ways. Country-western singer Merle Haggard condemned the counterculture in his hit tune, "Okie from Muskogee," and singer Anita Bryant held "rallies for decency." Southern Methodist University officials attempted to stop mail posted to the campus address of Notes from the Underground, while a group of alumni and students threatened violence if the "filthy sheet causing embarrassment" did not stop publication. Businessmen across the country put up door signs, "No Shirt, No Shoes, No Service," while Marc's Big Boy in Milwaukee hired a cop to make sure that no one with beads, beards, flowers, sandals, long hair, or funny glasses was allowed inside to buy a double hamburger.
These signs were not put up because of some epidemic related to bare feet; they were not put up to provide supposed protection to the bare feet of citizens; they were not put up because of a surge in lawsuits related to bare feet (easily verified with a simple search of LexisNexis). They were put up because of hostility to hippies. Nearly forty years later, most folks generally do not remember why such signs appeared, and they rationalize that it must have been because of hazards or health or safety, but that is not the case. It appears that Expo just blindly followed the lead of all the other unthinking businesses and added such a line to their entrance sign. And they did so without even considering whether they were authorized to do so.
The rule banning bare feet is in essence just as ridiculous (and just as unauthorized) as a rule requiring full sun protection, but since people buy into the myths associated with events of forty years ago, that shoe rule has gotten uncritical acceptance. The real question is whether such a rule can be scrutinized the way it should be; comparing it to full sun protection is one way to rise above uncritically accepted preconceptions.
If Chapter 991 of the Revised Code grants Expo plenary power to make police power regulations, then that grant is unconstitutional, for there is nothing in the statute that "canalizes" or limits such a grant. There is no way to tell just which sort of police power regulations they are allowed to make, and which ones exceed their authority. There is no way to distinguish between a full sun protection regulation and a foot protection regulation. There are no standards; there is no policy statement. Of course, the actual grant to Expo, to merely conduct their Fair without making police power regulations, is not unconstitutional, because it does not grant plenary authority. In fact, and as completely ignored by the trial court, Expo has not been granted the authority to make police power rules at all. And when analyzing such supposed grants of power:
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.
D.A.B.E., 96 Ohio St.3d at 259, quoting State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47. (Emphasis added.)
5. The shoe regulation infringes personal liberty because it falls outside the scope of the police power and is arbitrary, capricious, and unreasonable.
Regarding the validity of police power regulations, "[t]o be a valid police regulation it must have a clear and substantial relation to a proper object of the police power, and must not be arbitrary, discriminatory, capricious or unreasonable and must bear real and substantial relation to the subject sought to be obtained, namely, the health, safety, morals, or general welfare of the public." Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389, 397. See also Cincinnati v. Correll (1943), 141 Ohio St. 535. Even if Expo had been granted the authority to make police power regulations (and it has not), a shoe rule violates personal liberty guaranteed under the Ohio Constitution for two reasons: it falls outside the proper scope of the police power, and it is arbitrary, capricious, unreasonable, and does not bear a real and substantial relation to its supposed purpose.
Regulations that exist solely to protect a person from their own supposed folly fall outside the police power. Sections 1 and 2, Article I of the Ohio Constitution make it quite clear that "every person has inalienable rights under natural law which cannot be unduly restricted by government," Preterm Cleveland v. Voinovich (10th Dist. 1993) 89 Ohio App.3d 684, 691, and in the recognition of that natural law, "the Ohio Constitution confers greater rights than are conferred by the United States Constitution." Id. The police power is limited to protecting the general welfare of "society as a whole", Correll at 538, and does not include restricting a person's liberty unless that person's actions have "foreseeable consequences of causing harm to others." Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 46. As Thomas Jefferson put it:
Of Liberty then I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add "within the limits of the law," because law is often but the tyrant's will and always so when it violates the right of an individual.
"Political Writings By Thomas Jefferson," edited by Joyce Appleby and Terence Ball, Cambridge University Press (1999), p. 224, Letter to Isaac H. Tiffany, April 4, 1819. (Emphasis added.) Weinfeld v. Welling (5th Dist. 2005), 2005-Ohio-4721, ¶42, also makes the same point:
Personal liberty includes not only freedom from physical restraint, but also the right 'to be let alone'; to determine one's mode of life, whether it shall be a life of publicity or of privacy; and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.
This principle, and its specific application to bare feet, was recognized back in the 1960s and 1970s, when some concerned busybodies wanted to pass an ordinance for the streets of San Francisco. Said City Attorney Thomas M. O'Connor:
Unless the proposed legislation can be justified as protecting the general public from disease or injury, legislation designed solely to protect that portion of the populace who desire to roam the streets barefooted cannot be justified as a legitimate exercise of the police power.
"Footloose in San Francisco," The San Francisco Chronicle, April 3, 1969, p. 3. Finally, the Ohio Supreme Court has made it clear: "Our belief in the principle that '[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,' is reflected in our decisions." Steele v. Hamilton County Community Mental Health Board (2000), 90 Ohio St.3d 176, 181. (Internal citations removed.) The shoe rule clearly impinges on Neinast's right to determine for himself what he considers safe for himself and on his right to manage his affairs as he wishes, and it does not affect others in any way. The shoe rule falls outside of the police power.
These principles can be seen in action when the issue of motorcycle helmets was examined by the courts. Ohio's motorcycle law was held unconstitutional in a Municipal Court, which said,
We must conclude that § 4511.53 Revised Code is designed only for the protection of the individual motorcyclist. Whether or not a motorcyclist wears a helmet and goggles is a matter of concern solely to the individual involved. Included in man's "liberty" is the freedom to be as foolish, foolhardy or reckless as he may wish, so long as others are not endangered thereby.
State v. Betts (Mun. Ct. of Franklin Cty, 1969), 21 Ohio Misc. 175, 184, 252 N.E.2d 866, 872. (Emphasis added.) Even when a Court of Appeals in a different District upheld the motorcycle helmet law, it was very careful to base that decision upon the risk to others:
We believe that with the great increase of motorcycles on the highways, a motorcyclist who loses control of his vehicle because he is struck on his bare head by an object, constitutes a hazard to other users of the highway who may be struck by a motorcycle which has gone out of control.
State v. Craig (3rd Dist. 1969), 19 Ohio App.2d 29, 33, 249 N.E.2d 75, 77.1
The current status of the motorcycle helmet law is that the General Assembly amended it so that it only applies to minors, recognizing the significant liberty interest involved for adults. See O.R.C. § 4511.53(B). Again, Neinast's being barefooted poses no risk to others. The shoe rule violates his personal liberty.
1. State v. Stouffer (10th Dist. 1971), 28 Ohio App. 2d 229, 276 N.E.2d 651, found that the risk of death and severe injuries had sufficient impact on society as a whole to justify the helmet requirement. No such fears have been expressed by anybody regarding bare feet. The shoe rule is also arbitrary and capricious, though it might be difficult to convince the perennially shod of that. Neinast detailed that arbitrariness in his letter to General Manager Virgil Strickler. Also see the discussion of this in Neinast's Memo Contra, p. 11. Studies early in the last century examined the feet of populations that never wore shoes. The studies discovered that the natives' feet were remarkably healthy and free of most of the foot problems that plague people of today. "Conclusions Drawn from a Comparative Study of the Feet of Barefooted and Shoe-wearing Peoples", by Phil. Hoffman, M.D., The American Journal of Orthopedic Surgery, Vol. 3, No. 2, pp. 105-136 (October, 1905); "Survey in China and India of Feet That Have Never Worn Shoes", by Samuel B. Shulman, Pod.D., The Journal of the National Association of Chiropodists, Vol. 49 (1949), pp. 26-30. One need only look around today to realize what shoes do to feet. There are whole businesses, like "Walkfit" and "The Good Feet Store" with orthothics designed to ameliorate the problems caused by shoe-wearing (such devices are unnecessary to the barefooted populations). "Shod versus unshod: The emergence of forefoot pathology in modern humans?" by B. Zipfel and L. R. Berger, The Foot (December 2007), Vol. 17, Issue 4, pp. 205-213. Studies show that flat feet are a consequence of shoe-wearing. "The Influence of Footwear on the Prevalence of Flat Foot: A Survey of 1846 Skeletally Mature Adults," by V. Sachithanandam and Benjamin Joseph, The Journal of Bone and Joint Surgery, Vol. 77-B, No. 2, March 1995, p. 254. Bunions and hallux valgus are caused by the way feet sit in shoes. "17 Common Foot and Footwear Myths," by Dr. William A. Rossi, Footwear News (August 9, 1999). Even high-priced and highly-advertised specialized running footwear does not reduce injuries in the least. "Barefoot Running," by Michael Warburton, SportScience, Vol. 5, No. 3, Sept-Dec 2001. High-heels are especially dangerous and lead to knee osteoarthritis and ankle sprains. "Knee osteoarthritis and high-heeled shoes," by D. Casey Kerrigan, Mary K. Todd, and Patrick O. Riley, The Lancet (May 9, 1998); "Analysis of muscular fatigue and foot stability during high-heeled gait," by Amit Gefen, M. Megido-Ravid, Y. Itzchak, and M. Arcan, Gait and Posture, Vol. 15 (2002) pp. 56–63. Stepping on a nail while wearing shoes (and having the nail penetrate a soft rubber sole) is more likely to result in a bone infection with Pseudomonas aeruginosa, which resides in the interior of your shoes. "Soft tissue and bone infections from puncture wounds in children," by Terese J. Laughlin, David G. Armstrong, Joseph Caporusso and Lawrence A. Lavery, The Western Journal of Medicine (Feb 1997). Athlete's foot is a disease of shod populations, for the fungus that causes it thrives in a warm, dark, moist environtment, like the inside of a shoe. "Our Own Devices," by Edward Tenner, Alfred A. Knopf, New York (2003), p. 63. Yet Expo feels that they must ban bare feet, based upon some nebulous animousity displayed against hippies forty years ago, and a decision to close their minds to any scientific studies.
Is it possible to injure a bare foot? Of course it is, just as it is possible to trip or sprain an ankle, shod, on a crack less than two inches high. But, for the latter, the state does not require that all people always wear rigid ankle braces, for that falls outside the police power, and to do so would be arbitrary and capricious. The same applies for a shoe regulation.
6. It is similarly premature to conclude that an injunction is precluded.
There may be facts that show Neinast is entitled to an injunction; a Civ. R. 12(B)(6) dismissal precludes developing those facts. See also Neinast’s Memo Contra, pp. 12-13.
Conclusion
For these reasons, the Trial Court's grant of the motion to dismiss of the Defendants/ Appellees should be reversed, and the cause should be remanded for further proceedings.
In addition, Plaintiff/Appellant suggests that, in the interest of judicial economy, this Court make clear that, as a matter of law, Expo has not been granted the statutory authority to make police power regulations in particular, and the shoe rule in particular. Plaintiff/Appellant also suggests that this Court make clear, as a matter of law, that absent any showing that bare feet present a danger to others, any shoe regulation falls outside the scope of the police power and is an unconstitutional infringement on personal liberty.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served, by regular U.S. mail, upon Richard M. Jones, Assistant Attorney General, 30 East Broad Street, 26th Floor, Columbus, OH, 43215-3428, this XXth day of April, 2009.
___________________________
Robert A. Neinast