Statehouse Shootdown

The Joint Committee on Agency Rule Review held their meeting yesterday to review the Statehouse ban on bare feet.

This was our chance to get them to invalidate the rule.

It didn’t happen.

Here is the story in today’s Columbus Dispatch.

[Update: the story's being picked up by news organizations across the country: it went out on the AP wire.]

As usual, an amusing lead-in:

An effort to overturn a looming Statehouse ban on bare feet was stomped out by a legislative panel yesterday.

As the article states, we did get two votes in our favor, so the final vote was 8-2 against us. And their spokesman was touting their age-old excuse for the rule.

The rule change resulted from public-safety concerns, spokesman Gregg Dodd said.

I also think I’ve figured out what that “comparable footwear” line means, based
on the discussion in the original meeting: I think it means that socks are not
good enough.

By the way, there is another little turd-nugget in there. See if you can spot it.

[Update: the reporting on the "turd-nugget" is incorrect; what it claims is not true.]

Anyways, I testified at the meeting, and so did another barefoot friend, Burton Koss.

Here is my testimony:

Thank you for this opportunity to testify against Rule 128-4-02.

My name is Bob Neinast, and you may recall that I testified against this rule back in December.

As I said before, I go barefoot nearly everywhere, including regularly here at the Statehouse, and have done so for at least 10 years. There are a couple of reasons, but the main one is that it alleviates foot, knee, and hips pains. When I wear shoes for any length of time, my body hurts. When I go barefoot, the stresses on the joints are a lot less, and I don’t hurt. Additionally, the increased proprioception caused by physical contact with the ground helps me keep my balance and properly distribute the forces of walking.

This committee suggested that CSRAB go back and make some changes in the rule. The changes they made are pretty non-substantive, and mostly do not address the concerns I raised and heard last time I was here. This committee was concerned about just what sort of shoe was required, and all that was added to the rule were the words “or comparable footwear.” Of course, who knows what “comparable” means. The other change allowed the Director, Mr. Carleton, to grant waivers from the rules. That presents a whole different set of problems.

One other thing from last time I’d like to mention is that Mr. Carleton was asked if there were any penalties for violating the rule. He said no. That is incomplete—a violation of the rule could lead to criminal trespass charges, particularly if the person refuses to leave (but even that is not required to sustain a conviction). For anybody considering scheduling a wedding here, I’d advise against it: who wants their wedding party arrested for violating this shoe rule? (As we all know, many of the women remove their uncomfortable but stylish shoes). Or will this get an automatic waiver?

Mr. Carleton has justified the rule by imagining hazards in the Statehouse. He has talked about uneven or cracked tiles in the basement. I’ve been down there, barefoot. They are just fine, though maybe a bit worrisome for women wearing high heels—but I don’t see any ban on high heels being proposed. By the way, I’ve attached to this testimony a list of many, many lawsuits based on women getting injured while wearing high heels. During the last CSRAB meeting, Mr. Carleton related about how a piece of glass fell off an easel and broke, and how that would justify a shoe rule. First, if that falling glass is a danger, it would be to the tops of feet, but there is no consideration of requiring closed-toe shoes. Sandals and flip-flops are still allowed under the rule. Right? But the other thing is that most people do not realize that glass is not that much of a danger to the barefooted. Yes it is possible, but unlikely. I emailed you all a link to a short video I made in which I break a beer bottle, and tromp on it, without injury. I hope you all looked at it. Here is the URL again: <http://www.youtube.com/watch?v=4SP5sDF84Qc>.

The CSRAB is projecting fears as a reason for their rule. But projecting unreasonable fears is not a basis for reasonable rulemaking. Let me also say that, if being barefoot were truly hazardous here in the Statehouse, no waivers would be granted. Another problem is, for anything else, if there is a hazard, the responsible thing to do is fix the hazard. If chunks of the ceiling are falling down on people, you don’t make a hardhat rule—you fix the ceiling! If you truly think the tiles are a barefoot hazard—you fix the tiles! What are you doing allowing glass that might fall, which could a hazard to everybody’s feet, and to bare legs?

But from what I heard at various CSRAB meetings, the excuse about hazards is really a pretext. The reason for the rule is really about supposedly “dressing respectfully.” I sure hope that nobody here thinks that I am disrespecting them.

Last time I was here, I was also asked if I had a doctor’s note, and my answer was no. What possible test could my doctor run that would demonstrate that when I wear shoes, my knee starts to ache? What possible test could my doctor run to show that my bit of Morton’s neuroma is relieved by going barefoot? (Though, a web search confirms the general idea.) Last time waivers were also discussed for religious reasons. Who are they supposed to get a note from?

That leads me to the real problem with allowing the Director to grant waivers. Access to government is a fundamental right. It is related to petitioning the government and the right to vote. People (and particularly here in “The People’s House”) have a fundamental right of access. By the way, I should mention that I voted on Tuesday, just as I have done so for so many years. I have never had anybody even suggest that my bare feet precluded me from accessing the polling booth and voting. Yet this proposed rule wants to preclude me from the Statehouse. However, if you are familiar with any of the law in that area, granting one person unlimited discretion over restricting various First Amendment rights is simply not allowed. There need to be standards and criteria. We have no idea what Mr. Carleton will do when it comes to granting waivers. And what do I do if he doesn’t grant me one? I cannot come back here, for JCARR will no longer have jurisdiction.

When I was here last time, I talked about how this rule exceeds the delegated authority of CSRAB. Let me reiterate just a small part of that.

The Ohio Constitution says that only the General Assembly can legislate. When it comes to rulemaking by an administrative body, any delegation of the legislative power must be accompanied by standards and a discernible public policy statement or else it violates the Constitution. “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.” This principle is made clear in other court cases: “Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly.” “[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.”

Now, the Ohio Statutes do say that

(E)(2) [The CSRAB shall] . . . operate the capitol square, and have sole authority to regulate all uses of the capitol square. The uses shall include, but not be limited to, the casual and recreational use of the capitol square.

There are no standards there (and this is the text that CSRAB is relying on for their shoe rule). This is an unconstitutional delegation of the legislative power.

I’d like you to consider a simple question? Does the legislature have the power to ban bare feet on the streets? Can they decide that any activity can be banned that poses any risk, however, small, to the person doing the activity?

Traditionally, the police power has never been considered to encompass this. So, can an administrative body be delegated the power that even the General Assembly doesn’t have?

By the way, this question also illustrates why fear of hazards is really a pretext for legislating “respect.” The rule only applies inside the Statehouse, not on the exterior Statehouse grounds. If CSRAB’s true concern were safety, surely the sidewalks and grass, which are much harder to take care of, would have been included in the ban.

If this goes through, the unconstitutional delegation, combined with the First Amendment right of governmental access, would be a very interesting lawsuit. And that raises another one of the criteria by which JCARR should invalidate the rule. CSRAB has not done any fiscal analysis on what such a lawsuit would cost.

Now, I know Mr. Carleton has done his research, and when he gets up here, he will note that I have filed lawsuits over some of these issues before. And I have lost those lawsuits. The law as stated by the Ohio Supreme Court is very clear, yet somehow the lower courts manage to find a reason to uphold shoe rules. So, I suppose I have a good chance of losing again, though the governmental access issue is a new, and strong one. You know, I might finally find a judge who will take the Ohio Supreme Court mandate seriously.

It is sad that the very idea of freedom is anathema in this building, a place that those in power have ironically called “The People’s House.” There are all sorts of movements afoot that are tired of governmental meddling in that freedom. We keep hearing all this talk about excessive governmental regulations, yet here we are trying to impose yet another unnecessary one, saying that they know more about what is good for me than I do. The Statehouse is not my mommy.

I’d like to finish by saying just a bit more about respect. When Moses was up on Mt. Sinai, at the burning bush, God said, “Take thy shoes from off of thy feet, for thou standest upon holy ground.” Bare feet demonstrated respect for God. Those here in the Statehouse are proclaiming that bare feet may have been good enough for God, but they are not good enough for the Statehouse. They seem to be putting themselves above God wheh it comes to demanding respect.

I ask that you recommend that this rule be invalidated.

Thank you for your time and attention.

I was really, really happy to have Burton show up and testify. It can get awfully lonely up there. I also thought that Burton did a bang-up job. Here’s a copy of his testimony.

I’m Burton Koss. I live in Grove City, and I have lived there since 1995. This is the first time I have visited the Statehouse. I am here today because I find the proposed rule requiring shoes at the Statehouse to be very disturbing.

I frequently choose not to wear shoes, for spiritual reasons, for medical reasons, and for other reasons. I am not going to disclose details of my medical condition, and I am not going to elaborate on my spirituality.

My medical condition, and my spiritual beliefs, are none of your business. These matters are not the business of any branch of government. I am not required to submit a “doctor’s note” to any government authority. I am not required to disclose any medical condition that I may have. Even the name of my physician is private, confidential information that is protected by federal law. No one in this building has the authority to require me to produce that information.

The only reason this rule has been proposed is that some people are somehow offended when they see someone walking around without shoes. They have the right to be offended. I have the right to offend. This is the United States of America.

You are considering a rule that will put you on a very slippery slope, and will likely result in some very expensive and protracted litigation. The analysis of the “economic impact” of the rule does not account for the potential cost of such litigation.

By establishing a dress code that is not based on any facts or scientific evidence, you are restricting access to offices and proceedings that are, by law, open to the public. The proposed rule is alarmingly similar to restrictions that would prevent access to a polling place, thereby denying a citizen her right to vote. The right to observe the public proceedings that take place in this building is no less important, and you are about to impose some very arbitrary and irrational restrictions on that right.

The proposed rule is unconstitutional. This building is not a private club. It is not a private residence. It is not a private museum. It is not a private educational institution. This building is not private. This building is public. The public must be allowed to visit this building, without arbitrary restrictions that are based on the personal preferences of a few people.

CSRAB has no business telling me or anyone else in here how we should dress. Whether I choose to wear shoes should be of no more concern to CSRAB than whether I choose to wear earrings, or what color I choose to dye my hair.

As long as my chosen mode of dress does not violate our existing laws and health department regulations, it is simply not the concern of any government agency.

Government efforts to regulate how I dress are far more offensive than anyone
walking around without shoes.

In certain places in the Middle East, women can be charged with a crime for exposing their ankles. American servicemen and women are fighting, and dying, in foreign lands, as we attempt to help the citizens of those countries make changes to oppressive governments that do not recognize basic civil rights and freedoms. Meanwhile, here in Columbus, Ohio, we are evaluating a rule that would limit citizens’ access to public offices and proceedings because they are exposing their feet.

Something is wrong with this picture.

This is not an effective or appropriate use of government resources. I am here today to urge you to stop wasting the government’s time, and my tax money, on this process.

This is not what the members of CSRAB were elected or appointed to do. This isn’t in their job description.

I respectfully urge this Committee to declare this rule invalid.

There was of course a lot more that went on during the meeting. The two Senators who voted in our favor asked really good questions. By the way, I should mention that, often, Senators and Representatives will ask questions of witnesses not because they don’t know the answer, but because they are making a point to their other committee members.

Senator Skindell asked me about Senators and Representatives who might take their shoes off in their offices. Yes, that would be illegal, I answered.

Senator Tavares, who was a new member of the committee but is quite familiar to Columbus people, was, I thought, the most eloquent.

She’s was a State Representative in the 1990s, then served on the Columbus City Council, and is now a Senator. She recalled how, back in the 1990s, she would have homeless people come to her office (sometimes barefoot?). She then noted that not only would this ban affect that, but it would contribute to the already unwelcoming atmosphere at the Statehouse to the homeless who try to get help from their representatives.

I have to say, the fix was in from the beginning. The Chairman of the Committee, Frank LaRose, even mentioned that he and Mr. Carleton, the Director of CSRAB, had already agreed on the language (I already knew that), but during the meeting Sen. LaRose talked rather imperiously about it, and just basically pooh-poohed any objections. The rest of the committee just then followed his lead.

One thing that was rather annoying was that he was just outright misleading. Violating the rule really is criminal trespass, but Sen. LaRose said, oh no, nobody could be arrested for that.

It’s now official: Freedom is dead at the Ohio Statehouse.

 

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