The Ohio Statehouse: Legislative Authorization

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In this entry I thought I’d look at the legal issued involved in whether the Ohio Statehouse (the CSRAB) has the authority to create its shoe rule.

I think it is pretty clear that it does not.

Any administrative body only has such power as is granted to it by the General Assembly. Any delegation of the legislative power must be accompanied by standards and a discernible public policy statement. “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.” “[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.” Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379. (Emphasis added.)

So, what kind of authority has the Capitol Square Review and Advisory Board been granted? The statute that applies to them is Section 105.41 of the Ohio Revised Code. Here’s their authorization to create rules. The board may

(D)(3) Adopt, amend, or rescind rules necessary to accomplish the duties of the board as set forth in this section;

So, what are the duties of the board? Here’s the only one that seems applicable:

(E)(2) [The board 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.

So, do you see any standards there? I sure don’t. Do you see any public policy declaration of the need for footwear regulations in the Statehouse? I sure don’t.

It is clear from the Ohio Supreme Court rulings I quoted from that boards cannot be granted plenary powers, yet that is pretty much what that statute purports to do. And that means that the rules that they could make is limited only by their whims.

Want to ban hijabs? Fine. Want to say that every visitor to the Statehouse wear a tuxedo or cocktail dress? Fine.

What this allows is that their rules are determined by their prejudices, and in this case, that is their prejudice against bare feet. (And I’ve mentioned before, being barefooted exposes no more of the foot than wearing such things as flip-flops, since flip-flops expose the entire top of the foot, and while walking, can even expose the bottom.)

So, the question becomes whether it is the intent of the General Assembly that CSRAB have this sort of plenary power? The answer has to be, NO.

There is another important issue put forth by the Ohio Supreme Court, and that is that when a grant of rulemaking power is made, it is “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.” (Emphasis added.) D.A.B.E., 90 Ohio St. 3d at 259, quoting State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6. There is no hint that the General Assembly intends that the Statehouse is empowered to exclude otherwise well-behaved visitors based upon the Statehouse’s perception that bare feet violate some sort of decorum. There is no hint that the Statehouse has been empowered to make up a dress code. And that means that any doubt must be resolved against this footwear rule.

Administrative bodies are allowed to make rules because it is acknowledged that they have expertise in various areas. See Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 416 N.E.2d 614. Health Departments are allowed to make health and safety rules because that is within their area of expertise. The CSRAB knows nothing about health, yet they are here pretending that they are a health department (and, as we all know, real health departments don’t have footwear rules).

The Statehouse really has no legal basis for making their footwear rule. I sure hope we can convince JCARR of that.