IN THE COURT OF COMMON PLEAS OF FAIRFIELD COUNTY, OHIO


Robert A. Neinast
Plaintiff,
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Board of Trustees of the Fairfield County
District Library,
Defendant.
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CASE NO. 2009-CV-0657

JUDGE CHRIS A. MARTIN


DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND RESPONSE TO PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT


Now comes Defendant pursuant to Civil Rule 56, who moves the Court for summary judgment in favor of Defendant and against Plaintiff so as to dismiss Plaintiff's Complaint with prejudice on the basis of Defendant's affirmative defense of collateral estoppel.


  Respectfully submitted,

/s/     Roy E. Hart          
Roy E. Hart (0023826)
Assistant Prosecuting Attorney
Attorney for Defendant
201 South Broad Street — Suite 400
Lancaster, Ohio 43130
740-653-4259
Fax 740-553-4708


MEMORANDUM IN SUPPORT

Summary Judgment Standard

Summary judgment motions are to be resolved in light of the requirements of Civil Rule 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins (1996) 75 Ohio St. 3d 447, 448 by stating:

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317.

Facts and Related Cases:

Pursuant to Defendant's responses to Plaintiff's Interrogatories filed with the Court, Plaintiff visited the Fairfield County District Library on at least three occasions in 2008 without wearing footwear, and finally, during a visit to the Fairfield County District Library in April of 2008 while not wearing footwear, Plaintiff was informed that the Library had a footwear policy and that he would be required to leave the premises. Plaintiff complied with the request and left. The Fairfield County District Library Board enacted a Code of Conduct by resolution on April 17, 2007, which states that shirt and shoes must be worn in any library facility. The Code of Conduct goes on to state that if a child has learned to walk, the child must wear shoes.

On May 20, 2008, Plaintiff asked the Fairfield County District Library Board to revoke its footwear policy, and Plaintiff simultaneously provided information to the Board concerning the alleged benefits of not wearing footwear. The Board, after considering Plaintiff's request and Plaintiff’s information, resolved to maintain its Code of Conduct footwear policy. Undaunted, Plaintiff gave an oral presentation to the Board on October 21, 2008, outlining the benefits of being shoeless and the disadvantages of wearing footwear. On February 17, 2009, the Board again took action to retain its Code of Conduct footwear policy.

Plaintiff commenced litigation in this case on May 13, 2009. Plaintiff's demand for relief states:

WHEREFORE, Plaintiff Robert A. Neinast respectfully requests that this Court grant him judgment as follows:

A. Declare that the Board does not have the statutory authority under the law to make regulations requiring that patrons wear shoes in the Library.

B. Declare that the footwear rule infringes upon Mr. Neinast’s personal liberty, is arbitrary and capricious, and does not bear a real and substantial relation to the health, safety, morals or general welfare of the public.

C. Issue a permanent injunction preventing the Board of Trustees, the Director, or any other Library employee from enforcing any rule or regulation specifying that footwear must be worn in the Fairfield County District Library.

D. Award Plaintiff any other legal and equitable relief to which he is entitled.

Plaintiff is no stranger to footwear litigation. Pursuant to previously reported cases in the federal courts and in the court of Ohio, in 2001, claiming violations of Section 1983, Title 42. U.S. Code, premised on deprivations of various constitutional rights [including infringement upon Plaintiff’s personal liberty] under the United States and Ohio Constitutions, plaintiff filed a complaint in the common pleas court against the board, the former executive director of the library, and the library’s assistant manager of security. The matter subsequently was removed to federal district court where the parties moved for summary judgment. Thereafter, the district court granted defendants’ motion for summary judgment and denied plaintiff’s motion for summary judgment. Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040, (see attached). From the district court’s judgment, plaintiff appealed to the United States Court of Appeals for the Sixth Circuit, which affirmed the lower court’s judgment. Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585, (see attached), certiorari denied, 541 U.S. 990, 124 S.Ct. 2040, 158 L.Ed.2d 495, (see attached). [Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211 at page 213, 845 N.E. 2d 570 at page 571.]

After being evicted from the Columbus Metropolitan Library for going barefoot, Robert Neinast commenced litigation in June of 2004, against the Board of Trustees of the Columbus Metropolitan Library in the Franklin County Court of Common Pleas in case no. O4CVH-06-6341. Therein, Mr. Neinast sought declaratory and injunctive relief prohibiting the library from enforcing its footwear policy, while simultaneously challenging the Board’s statutory authority to promulgate and enforce footwear rules. Upon summary judgment, the common pleas court denied the demands for declaratory and injunctive relief and held that the library possessed the statutory authority according to Revised Code Section 3375.40(H) to require patrons of the library to wear footwear in the library. Mr. Neinast appealed the statutory authority ruling which permitted the promulgation and enforcement of footwear rules. The Tenth District Court of Appeals affirmed the judgment of the Franklin County Court of Common Pleas. See Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570 (see attached). Mr. Neinast then took his case to the Ohio Supreme Court; however, the Ohio Supreme Court did not accept his case for review. See Neinast v. Board of Trustees of the Columbus Metropolitan Library, 109 Ohio St. 3d 1506, (2006), (see attached).

This Court can readily see that Plaintiff herein has fully and completely litigated the issues in other courts that he has, once again, presented to this Court for review. Commencing in 2001, the Federal Courts were presented with notions of infringement of personal liberties due to footwear regulations. The Ohio courts, commencing in 2004, dealt with the issue of whether or not libraries possessed statutory authority under Revised Code Section 3375.40(H) to promulgate and enforce footwear rules. The Federal Courts held that footwear rules do not infringe upon Mr. Neinast’s personal liberties. The Ohio Courts held that libraries do have statutory authority under Revised Code Section 3375.40(H) to promulgate and enforce footwear rules. Mr. Neinast is now attempting to relitigate the same issues in this Court. The doctrine of collateral estoppel, or as is sometimes referred to as “issue preclusion”, bars Plaintiff’s claims herein.

The Law:

The law in Ohio regarding the doctrine of collateral estoppel or issue preclusion has been restated many times in different contexts, ranging from real estate matters and wrongful death cases to professional malpractice issues. The doctrine of collateral estoppel or issue preclusion is not to be confused with the doctrine of res judicata or claim preclusion. See Cashelmara Villas Ltd. Partnership v. DiBenedetto, (C.A., Cuyahoga, 1993), 87 Ohio App 3d 809; Thompson v. Wing, (1994), 70 Ohio St. 3d 176; Nye v. Ohio Bd. of Examiners of Architects, (C.A., Franklin, 2006), 165 Ohio App 3d 502; and Blackwell v. Gorman, (C.C.P., Franklin, 2007), 142 Ohio Misc.2d 50. The elements of the doctrine of collateral estoppel have gradually changed although the doctrine may arise in different fact patterns.

The current test of whether or not the doctrine of collateral estoppel applies to a specific fact pattern has been most clearly stated in the Blackwell case, supra, at page 63. The Blackwell Court stated:

Collateral estoppel applies when (1) the fact or issue was actually and directly litigated in the prior action, (2) the fact or issue was passed upon and determined by a court of competent jurisdiction, and (3) the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action.

Further, the test of “mutuality” must also be applied in order to determine if the doctrine of collateral estoppel bars a Plaintiff’s claim in a second law suit. The test of “mutuality” has been relaxed over the years. The original test of “mutuality” required that issues in a previous decision not be drawn into question in a subsequent action between the same parties or their privies, whether the causes of action are identical or different. Blackwell v. Gorman, Ibid., at page 64.

The Nye Court said it this way:

Mutuality of parties generally is a requisite to collateral estoppel, so that collateral estoppel operates only when all of the parties to the present proceedings were bound by the prior judgment. In order to preclude either party from relitigating an issue, a judgment must be preclusive upon both. Nye, Ibid., at page 508.

Over the years, however, the original test of “mutuality” has been relaxed to require that the party against whom the doctrine of collateral estoppel is to be applied had a full and fair opportunity to litigate the issues. Furthermore, there is no longer any requirement that the party asserting the doctrine of collateral estoppel must have been a party to the prior action. Blackwell, Ibid., at page 63.

Today, therefore, the applicability of the doctrine of collateral estoppel to a case or set of issues depends upon whether (1) a fact or issue was actually and directly litigated in the prior action, (2) that fact or issue was passed upon and determined by a court of competent jurisdiction, and (3) whether or not the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action. The test of “mutuality” then asks the question whether or not the party against whom the doctrine of collateral estoppel is to be applied had a full and fair opportunity to litigate the issues. Blackwell, Ibid., at page 63.

Argument:

In the instant case, Plaintiff is asking for three specific things. He first asks this Court to declare that the Board does not have the statutory authority under the law to make regulations requiring that patrons wear shoes in the library. Was this issue actually and directly litigated in a prior action? Yes. This issue was actually and directly litigated in the Common Pleas Court of Franklin County, Ohio; and the Tenth District Court of Appeals, only to have the Ohio Supreme Court decline to review the lower court decisions. See Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570, and Neinast v. Board of Trustees of the Columbus Metropolitan Library, 109 Ohio St. 3d 1506, (2006). The Franklin County courts found that the Columbus Metropolitan Library possessed the statutory authority according to Revised Code Section 3375.40(H) to require patrons of the library to wear footwear in the library.

Plaintiff herein then asks this Court to declare that the footwear rule infringes upon his personal liberty, is arbitrary and capricious, and does not bear a real and substantial relation to the health, safety, morals or general welfare of the public. Was this issue actually and directly litigated in a prior action? Yes. The Federal District Court and Sixth Circuit Court of Appeals spoke directly to the issue of infringement of personal liberty and found no infringement, only to have the United States Supreme Court deny certiorari. See Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040; Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585; and Neinast v. Bd. of Trustees of the Columbus Metro. Library, 541 U.S. 990, 124 S.Ct. 2040, 158 L.Ed.2d 495.

Plaintiff herein then asks this Court to issue a permanent injunction preventing the Board of Trustees, the Director, or any other Library employee from enforcing any rule or regulation specifying that footwear must be worn in the Fairfield County District Library. Was this issue actually and directly litigated in a prior action? Yes. The issue of injunctive relief was actually and directly litigated in the Franidin County Court of Common Pleas and the Court found in favor of the Columbus Metropolitan Library. See Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570.

The next element of the doctrine of collateral estoppel involves the question of whether or not the issue was passed upon and determined by a court of competent jurisdiction. There is no issue here. The proper courts passed upon and determined all three issues. There were no appeals taken in the prior actions based upon lack of jurisdiction.

The final element of the doctrine of collateral estoppel involves the question of whether or not the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action. Not only was Mr. Neinast in privity with the plaintiffs in the Franklin County cases and the Federal cases, Mr. Neinast is the same party.

We then come to examine the test of “mutuality”. Did Plaintiff herein have a full and fair opportunity to litigate the issues in the prior actions? Yes, he did. In every case, Mr. Neinast was given the opportunity to fully and fairly explore the issues as presented to each lower court by way of summary judgment, and thereafter, briefed on appeal in the appellate courts. Indeed, Mr. Neinast has a motion for summary judgment pending in the case at bar.

Conclusion:

All of the elements of the doctrine of collateral estoppel have been fulfilled. The issues were actually and directly litigated in the prior cases; the issues were passed upon and determined by courts of competent jurisdiction; and Plaintiff herein, the party against whom collateral estoppel is asserted was not only in privity with the Plaintiffs in the prior cases — he is the Plaintiff in each of the prior cases. Furthermore, Plaintiff had a full and fair opportunity to litigate all of the issues in the prior cases. The conclusion is inescapable. The doctrine of collateral estoppel or issue preclusion applies.

The doctrine of collateral estoppel is not just some procedural window-dressing. It is basic to our legal system. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the results of the contest. . .“. Blackwell, at page 66, citing State v. Szefcyk, 77 Ohio St.3d 93 at page 95.

Further, applying the requirements of Civil Rule 56(C), it is plainly clear that no genuine issue as to any material fact remains to be litigated concerning the application of the doctrine of collateral estoppel to this case; that Defendant is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds can come to but one conclusion, and in viewing such evidence most strongly in favor of Plaintiff, that conclusion is adverse to Plaintiff.

Defendant, therefore, urges this Court to apply the doctrine of collateral estoppel and demands that Plaintiff’s complaint be dismissed with prejudice at Plaintiff’s cost.


  /s/     Roy E. Hart          
Roy E. Hart (0023826)
Assistant Prosecuting Attorney
Attorney for Defendant


CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Motion was sent by ordinary U.S. mail, postage prepaid, to Robert A. Neinast, acting pro se, at his address of 8617 Ashford Lane, Pickerington, Ohio 43147, this 7th day of January, 2010.

  /s/     Roy E. Hart          
Roy E. Hart (0023826)
Assistant Prosecuting Attorney
Attorney for Defendant





Affidavit of Marilyn Steiner dated January 7, 2010.




Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040.




Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585.




Neinast v. Bd. of Trustees of the Columbus Metro. Library, 541 U.S. 990, 124 S.Ct. 2040, 158 L.Ed.2d 495.




Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570.