IN THE SUPREME COURT OF OHIO

IN THE SUPREME COURT OF OHIO Robert A. Neinast, CASE NO. 11-0435 -vs- Plaintiff - Petitioner On Appeal from the Fairfield County Court of Appeals, Fifth District Case No. 2010-CA-011 Board of Trustees of the Fairfield County District Library, Defendant - Respondent MEMORANDUM IN RESPONSE DAVID L. LANDEFELD (0000627) ROBERT A. NEINAST, PRO SE Fairfield County Prosecutor 8617 Ashford Lane Pickerington, Ohio 43147 JASON M. DOLIN (0041820) (614) 759-1601 Assistant Prosecuting Attorney neinast@att.net (COUNSEL OF RECORD) 239 West Main Street, Ste. 101 Lancaster, Ohio 43130 (740) 652-7560 (740) 653-4708 (Fax) E-mail: idolingco.fairfield.oh.us COUNSEL FOR DEFENDANT- RESPONDENT BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY PRO SE FOR PLAINTIFF- PETITIONER ROBERT A. NEINAST

TABLE OF CONTENTS PAGE RESPONDENT'S POSITION WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION, IS NOT OF GREAT PUBLIC INTEREST, AND WHY LEAVE TO APPEAL SHOULD BE DENIED...1 STATEMENT OF THE CASE AND FACTS...2 RESPONSE TO RESPONENT'S FIRST PROPOSITION OF LAW...3 PETITIONER'S APPEAL IS PROCEDURALLY IMPROPER...3 APPELLANT'S PROPOSITION OF LAW NO. 1...4 Leave to Appeal Should be Denied Because Well Established Case Law Makes Clear that the Library Had the Authority to Promulgate the Health and Safety Regulation Challenged by the Petitioner. RESPONSE TO RESPONDENT'S SECOND PROPOSITION OF LAW NO. 2...6 Leave to Appeal Should be Denied Because the Court of Appeals Properly Denied the Petitioner's Motion for Summary Judgment. RESPONSE TO RESPONDENT'S SECOND PROPOSITION OF LAW NO. 3...6 Leave to Appeal Should be Denied Because the Court of Appeals Properly Applied Applicable Case Law. CONCLUSION...7 CERTIFICATE OF SERVICE...8

RESPONDENT'S POSITION WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION, IS NOT OF GREAT PUBLIC INTEREST AND WHY LEAVE TO APPEAL SHOULD BE DENIED There are numerous reasons, both procedural and substantive, why this Court should dismiss the Petitioner's appeal. This case involves neither a substantial constitutional question nor is it of great public interest where this ro ^ se Petitioner seeks to strike down a health and safety rule of the Fairfield County District Library prohibiting library patrons from using the library while barefoot. At the outset, all of the issues raised by the Petitioner have been clearly and definitively addressed in other cases, including those previously brought by the Petitioner himself, and the Petitioner seeks to have this Court revisit issues of well established law. Moreover, the number of members of the public impacted by this case - those who seek to use libraries or public facilities while barefoot - is exceedingly small. Finally, the Petitioner has failed to follow the procedural requirements necessary to obtain this Court's jurisdiction. Accordingly, as will be shown below, this Court should deny the Petitioner leave to appeal. 1

STATEMENT OF THE CASE AND FACTS Respondent concurs with the procedural history and statement of facts as set forth by the Court of Appeals in paragraphs 1 through 4 of its decision. See Neinast v. Bd of Trustees of Fairfield County Dist. Library, Fairfield App. No. 2010-CA-011, 2010-Ohio-5569, 1-4 ("the Decision Below"). The issue in the Decision Below was whether the Petitioner's claims were barred by collateral estoppel because he had litigated, and lost, similar legal claims against the Columbus Metropolitan Library. See Neinast v. Bd. of Tr. of the Columbus Metro. Library, 190 F.Supp.2d 1040 (S.D. Ohio 2002); Neinast v. Bd. of Tr. of the Columbus Metro. Library, 346 F.3d 585 (6th Cir. 2003); and Neinast v. Bd. of Tr. of the Columbus Metro. Library, (2006), 165 Ohio.App.3d 211, 2006-Ohio-287. In the Decision Below, the Court of Appeals stated that: {56} We therefore determine because there is non-mutuality of parties, it was error to impose collateral estoppel. We remand this case to the trial court to determine if in fact Respondent can establish reasons for the footwear rule that applies specifically to Respondent. Neinast, 2010-Ohio-5569 at 56. The evidentiary hearing ordered in the Decision Below was held in Fairfield County Common Pleas Court on March 8, 2011 before Fairfield County Common Pleas Judge Chris Martin. After that hearing, but before Judge Martin issued his decision based upon the evidentiary hearing, the Petitioner on March 17, 2011 filed his Notice of Appeal from the Decision Below. It is that Notice of Appeal that Respondent Fairfield District Library seeks to have dismissed. On March 29, 2011, twelve days after the Petitioner filed his Notice of Appeal in the Decision Below, Judge Martin issued his decision denying the relief requested by Petitioner and 2

entered final judgment against him. By notice filed March 30, 2011 the Petitioner was notified pursuant to Fairfield County Local Rule 5 that "an entry which may be a final appealable order [bold in the original] has been filed with the Clerk of the Common Pleas Court on March 29, 2011." RESPONSE TO PETITIONER'S PROPOSITIONS OF LAW PETITIONER'S APPEAL IS PROCEDURALLY IMPROPER Before addressing the Petitioner's propositions of law, it is important to note that the Petitioner's appeal from the Decision Below is procedurally improper as it was not a final appealable order. The Decision Below remanded the case back to the Fairfield County Common Pleas Court for further evidentiary proceedings. See Neinast, 2010-Ohio-5569 at 56. Because the Court of Appeals remanded the case to the Common Pleas Court for further evidence, the Decision Below was not a final appealable decision. Thus, on March 17, 2011, when the Petitioner filed the instant appeal, he appealed a non-final decision. In addition, even assuming for the sake of argument that the Petitioner was in fact appealing a final decision or order, he filed the instant Notice of Appeal after the mandatory filing deadline had expired. In his Notice of Appeal, the Petitioner states that he is appealing:...from the judgment of Fairfield County Court of Appeals, Fifth Appellate District, entered in Court of Appeals case no. 2010-CA-O1l on November 15, 2010. Furthermore, Petitioner filed an Application for Reconsideration on November 24, 2010 and the Court of Appeals denied that Application on January 31, 2011. Appellate Rule 26(A) states that "The filing of an application for reconsideration shall not extend the time for filing a notice of appeal in the Supreme Court." Supreme Court Rule II, Section 2 requires that "the Petitioner shall file a notice of appeal in the Supreme Court within 45 3

days from the entry of the judgment being appealed." Supreme Court Rule II, Section 2 goes on to state that "Except as provided in divisions (A)(2), (3), and (4) of this section, the time period designated in this rule for filing a notice of appeal is mandatory, and the Petitioner's failure to file within this time period shall divest the Supreme Court of jurisdiction to hear the appeal." Assuming, for the sake of argument, that the Petitioner's appeal was of a final order, it was untimely by more than two months. Finally, the Petitioner failed to comply with Appellate Rules 9 and 10 by failing to file the fu11 record. Indeed, he filed his Notice of Appeal before the transcript of the March 8, 2011 Common Pleas evidentiary hearing had even been prepared. Thus, as a simple procedural matter, the Petitioner had no right at the time he filed his Notice of Appeal to seek the jurisdiction of this Court and his appeal should be dismissed. Response to Petitioner's Proposition of Law No. 1 Leave to Appeal Should be Denied Because Well Established Case Law Makes Clear that the Library Had the Authority to Promulgate the Health and Safety Regulation Challenged. by the Petitioner In Proposition of Law No. 1("Proposition 1") the Petitioner seeks to have this Court review law that has been settled and well established for years. In particular, in prior cases litigated by the Petitioner, both state and federal courts have ruled that public libraries in Ohio have the authority to promulgate health and safety related rules of the type being challenged in this case. For example, in Neinast v. Bd. of Tr. of the Columbus Metro. Library, the Tenth District Court of Appeals stated that: Notwithstanding plaintiffs contentions to the contrary, we conclude that under former R.C. 3375.40(H), the board of trustees had authority to promulgate and enforce a rule that requires footwear to be worn in the library. Former R.C. 4

3375.40(H)1 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 concems 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). Neinast, 165 Ohio.App.3d at 216. In another case involving the Petitioner, Neinast v. Ohio Expositions Comm'n, 2009- Ohio-4850, appeal not allowed, 2009-Ohio-6816, 124 Ohio St. 3d 1419, 919 N.E.2d 216, the Court of Appeals stated that: During Petitioner's prior litigation against the Columbus Metropolitan Library, this court and the federal courts recognized that the library board reasonably determined that the requirement that library patrons wear shoes is necessary to protect the health and safety of the patrons against hazards in the library, as well as protect the economic well-being of the library, by averting tort claims and litigation expenses from potential claims of injured barefoot patrons. The same principal holds true here. See Neinast v. Bd. of Tr. of the Columbus Metro. Library (2002), 190 F.Supp.2d 1040; Neinast v. Bd of Tr. of the Columbus Metro. Library (2003), 346 F.3d 585; and Neinast v. Bd. of Tr. of the Columbus Metro. Library, 165 Ohio App.3d 211, 845 N.E. 2d 570, 2006-Ohio-287. Supra, at 16. This Court declined jurisdiction in both of those cases. Federal court decisions have also found the Petitioner's various assertions to be without merit. See Neinast v. Bd. of Tr. of the Columbus Metro. Library (2002), 190 F.Supp.2d 1040; Neinast v. Bd. of Tr. of the Columbus Metro. Library (2003), 346 F.3d 585. ' The Court of Appeals noted that while RC 3375.01(H) had been amended, those amendments did not effect subsection (H). 5

Response to Proposition of Law No. 2 Leave to Appeal Should be Denied Because the Court of Appeals Properly Denied the Petitioner's Motion for Summary Judgment In Proposition of Law No. 2 ("Proposition 2"), the Petitioner asserts that the trial court should have granted his motion for summary judgment and that, in upholding that denial, the Decision Below was in error. In particular, the Petitioner asserts in Proposition 2 that in responding to his motion for summary judgment the Fairfield District Library "in fact, responded with nothing." Petitioner's Memorandum at 11. That assertion is simply incorrect. After the Petitioner filed his motion for summary judgment in the Common Pleas Court, the Respondent filed in one consolidated document its own motion for surnmary judgment coupled with its response in opposition to the Petitioner's motion for summary judgment. Indeed, the record below shows that in opposing the Petitioner's motion for summary judgment (and in support of Respondent's own motion for summary judgment), Respondent Fairfield District Library filed the affidavit of its Executive Director which contained some of the reasons why the Library adopted the "footwear" rule. That affidavit asserted facts more than sufficient to defeat the Petitioner's motion for summary judgment. Response to Proposition of Law No. 3 Leave to Appeal Should be Denied Because the Court of Appeals Properly Applied Applicable Case Law In Proposition of Law No. 3 ("Proposition 3") the Petitioner appears to assert that it was error for the Court of Appeals to describe certain cases cited in the Decision Below, and upon which the Court of Appeals relied, as "settled case law." At the outset, the phrase used by the Court of Appeals in the Decision Below was "applicable case law" ("All other issues, including 6

the authority to establish rules and the Federal Courts' holdings that a properly formulated footwear rule does not violate personal freedoms, are resolved under anplicable case law."). See Neinast, 2010-Ohio-5569 at 56 (emphasis added). The Decision Below also states that "Upon review, we conclude the issue of the authority to promulgate mles is settled based upon case law, and summary judgment for Petitioner apart from the collateral estoppel issue would not have been appropriate." Neinast, 2010-Ohio-5569 at 69 (emphasis added). As such, it does not appear that the phrase "settled case law" was even used in the Decision Below. But beyond that, even if the Decision Below employed the phrase "settled case law" that phrase is merely the court's shorthand description of prior cases and the use of that phrase, of and by itself, has no legal import. What matters here, and what the Court of Appeals did, was issue its ruling based upon prior "applicable cases" - just as it described in paragraph 56 of the Decision Below. Accordingly, Proposition 3 has no basis in fact or law and cannot provide grounds for this Court to accept jurisdiction of this appeal. CONCLUSION For the foregoing reasons, this Court should decline to accept jurisdiction in this case. Respectfully submitted, David L. Landefeld (0000627) Prosecuting Attomey / C- /`i 01-Q-- Jason M. Dolin (0041820) (COUNSEL OF RECORD) Assistant Prosecuting Attorney COUNSEL FOR RESPONDENT BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY 7

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Memorandum in Response was served upon the below listed individual at the address listed below by mailing it by regular U.S. Mail, postage prepaid, this 13th day of April, 2011. Robert A. Neinast 8617 Ashford Lane Pickerington, Ohio 43147 r- --- Jason M. Dolin(0041820) (COUNSEL OF RECORD) Assistant Prosecuting Attorney COUNSEL FOR RESPONDENT BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY 8