Folks may remember that I lost my appeal in my lawsuit against a local library. I talked a bit about that in How Judges Cheat — Part 2. After you lose at the appeals level, you have two choices: accept the loss, or try to get the Ohio Supreme Court interested.
I felt I had to at least make the attempt to get the Ohio Supreme Court interested.
First, a few words about the court system. The Trial Court level is where most decisions are made. If you lose there, you can make what is called an “appeal as of right”. You have the right to have an appeals court hear your appeal. The main function there is to correct errors made in the lower court that affected the outcome. The next level above the appeals courts is the Supreme Court (obviously, I am describing the situation in Ohio—while most other states are similar, they all are not). However, you do not have an appeal as of right to the Supreme Court. Instead, you have to tell them why you think they should accept your case for review. For almost all cases, the Ohio Supreme Court does not have to take the case; it is totally up to their discretion. (It is also possible to appeal state cases to the United States Supreme Court if your state Supreme Court denies review, but the US Supreme Court also has discretion over whether to take a case. Furthermore, they will not take a case with purely state issues, which is the situation with my case.)
For my case, I earlier won an appeal (the trial court had dismissed my lawsuit in error, and I got the appeals court to agree). So, it went back to the trial court, an evidentiary hearing was held, and I lost again. So it was back to the appeals court, and this time the completely ruled against me. So, my only choice was to appeal to the Ohio Supreme Court to take my case.
I filed my appeal on January 30. That was 45 days after I lost my appeals court appeal. There are rules for when you can file an appeal with the Ohio Supreme Court, and 45 days is the latest possible time.
Another thing I tried to do was to see if I could get an organization to file an Amicus Brief. An Amicus Brief is a brief from an amicus curiae, that is, a “friend of the court”. This might be an organization that has expertise in some particular aspect of a case, or an interest in seeing a case turn out a particular way. Having an amicus brief can be helpful, because if the Supreme Court sees that others are interested in the case, then the Court might decide that the case is important enough to take. Sorry, no takers.
Yesterday, the Library filed their response to my appeal. What they filed was a “Waiver of Memorandum in Response”. In other words, they told the court they weren’t even going to bother to write a response.
This can be an effective strategy (in fact, I was surprised that they didn’t do it last time I appealed). The criteria that the Ohio Supreme Court uses to decide whether to take an appeal is whether is addresses “a substantial constitutional question” or is “a question of public or great general interest”. If the opposing party doesn’t even bother responding to an appeal, that is a way of saying “this case is so uninteresting even we don’t think it’s worth saying anything more”.
You can see the online docket and the documents at the Ohio Supreme Court website here.
It really is unlikely that the Ohio Supreme Court will take the case. Don’t forget, that people see this as a barefooting case. They see it as a case that affects just a single, possibly crazy, person. How could it possibly be a question of public or great general interest?
Of course, we see it differently. We see it as an infringement of one’s right to be left alone, of one’s right to decide for oneself how to balance the various risks one traverses through life (some people prefer the risk of broken ankles from high heels; we prefer the extremely low risk of a possible puncture wound that heals up in 3 days).
There is also the issue of the way the courts have cheated in order to rule against me. You would think that would be of great public interest. After all, if you cannot trust the courts, what then?
When writing the appeals brief, that was the way I tried to cast things, but I do not have high (or even medium) expectations. So it goes. But I felt the effort had to be made, nonetheless.
We’ll probably hear back from the Court in about 2 months. That’s usually about how long it take them to decide whether to dismiss an appeal.
All I can say is I tried. But those in power are so wedded to shoddy thinking that they cannot be pried loose.
Bob, if I may ask, what is your primary reason for going barefoot? If it falls under a disabiltiy, say some kind of past injury and you can prove it, you could theretically file under the Equal Protection Clause of the 14th Amendment. If I were you, I would start by seeing two things:
1. What is you primary reason for going barefoot?
2. Does it fall under a Constitutionally Protected Class?
3. Can you prove points 1 and 2.
I believe I mentiond this in a discussion with you once before, but I do not remember what came of it.
Now see. If SBL was an actual organization and not just a bunch of guys on an email list, they might have been able to file an Amicus Brief. Did you try the ACLU?
Tim,
I’m not sure what you mean by referring to the Equal Protection Clause. All that really says that laws have to have a rational basis (as interpreted by the courts). And, generally speaking, the disabled are not a protected class under the Equal Protection Clause.
Or did you mean the American with Disabilities Act? While going barefoot does make my knees and joints feel better, that probably does not fall under the rather strictly interpreted terms of the ADA.
Besides, this is a freedom that ought to be widely supported. I didn’t want to carve out a very limited right to go barefoot if you are disabled, when the real right is simply the right to go barefoot.
Dan,
Back when I was in the SBL I tried to get them to do something as minor as having an Executive Director, so that letters and actions would at least have some sort of official imprimatur. The “bully” raised a stink about the entire idea (possibly simply because it was me that suggested it), and the wobbly set of folks who run it didn’t much like the idea, either.
Regarding the ACLU, I know I promised you a blog entry on them; I keep procrastinating because it’ll be one of my longer entries and I need to build up my energy
. Anyways, expect that soon.
In the meantime, yes, I did ask the ACLU. Multiple times.
“They see it as a case that affects just a single, possibly crazy, person. How could it possibly be a question of public or great general interest?”
Now imagine that computer technology and social media were at this level in 1970 or 1971. There would have been 250,000 “likes” on facebook, for the primal foot alliance, not just 1,360 or so, social media would have gotten college students to do a barefoot flash mob at the statehouse, online petitions of a million would happen, and suddenly this would become a subject of great general interest. Today’s young people have zero interest in this, and just do not care. And the vast majority of those who were around back then already went barefoot enough when they were young and stopped caring. Our culture no longer wants any part of the concept of going barefoot in public to exist anymore. Collectively the people have long decided this, the courts are just following along.
Bob,
I was reading two things at the same time this morning. I believe I got mixed up and said something that I didn’t intend. Sorry about the confusion. I guess I should try to do so many things at one time. Now that I read what I wrote earilier, and what you wrote, I’m not exactlly sure how a came to the conclusion I came to. As you correctly realized, I confused the provisions of several different things. Sorry about the confusion.