Yesterday I gave an example of how judges cheat by simply ignoring what the law says, and not following the rules of judicial construction. Today I’m going to give examples from my own cases that show a way of cheating that never shows up in the published opinions. Unless you are able to read the briefs of the case, there is no way to know what the court’s opinion left out (though sometimes you can find that if a dissent is written).
I lost my appeal in my lawsuit against the Fairfield County District Library, with the opinion being issued on December 14, 2011.
That was not my first loss. In all instances, I have found that the courts simply ignored arguments that would have helped my case. And these weren’t oh-by-the-way arguments; they were a major part of the argument. The courts didn’t say why an argument was wrong or irrelevant; it simply did not even mention in the opinion that I had made the argument.
For instance, in my first, federal lawsuit against the Columbus Metropolitan Library, the court simply ignored the argument that protecting a person from him- or herself was not a legitimate governmental interest. You can see some of those arguments in this blog post. (You can see them in the brief itself, here.) The court simply omitted any discussion of that issue. Along the way, it also made up hazards, accepting without evidence the proposition that things like feces or blood or urine on the floor really were a hazard to a barefooted person. (They’re not—that is what skin is for.)
That court also declined to hear my challenge to the rulemaking authority of the library’s director. In this instance, their shoe rule had not been enacted by the Board (as required by state law), but created merely by the library’s director. In addition, I didn’t see how even state law authorized a shoe rule.
So, I filed a new suit against the Columbus Metropolitan Library to challenge the shoe rule. Within a short period of time after the filing, the library board enacted the shoe rule itself.
But again, the courts (trial court and appeals court), ignored the arguments. I’ve mentioned before that under Ohio law, the legislature can only delegate rulemaking authority if it also provides a discernible public policy declaration and the need for the regulation. Furthermore, that has to go beyond a mere statement that an administrative body may make rules.
All the opinion did in that case was quote the rulemaking statute:
[The statute] 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 concerns 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).
You see it? “Proper operation and management” is the discernible public policy declaration. I don’t know about you, but for me, a discernible public policy declaration would, you know, let a library board know what kinds of rules it was allowed to make. If it is allowed to make barefoot rules, is it also allowed to make high-heel rules? Who knows? But since we don’t know, how can that be a discernible public policy declaration?
But there was also the argument I made that the opinions ignored. That is that the police power (the power of the government to protect the public morals, health, safety, or general welfare) was not delegated to the library. I cited case after case showing that police powers always had to be explicitly delegated. Didn’t matter. The court opinion failed to mention that I’d even argued that.
By the way, in all those previous cases, I argued that libraries had statutory immunity from injury lawsuits, and since their patrons are licensees, the library only has to refrain from willful and wanton conduct. I blogged that here. Yet, those courts, in every opinion, stated that the barefoot rule served the purpose of protecting the library from costly injury lawsuits.
How? I ask.
And now to the case against the Fairfield County Library that I just lost earlier this month. You can see their opinion here.
So, what’s missing?
For my first assignment of error, I tried to address that by getting the trial court to take judicial notice of the immunity and licensee issues. The court did not do so. Now, I recognized that that was not an error, but I called it an error just to get the appeals court to write something about it. I had had all those previous opinions completely ignore it. By putting it into the assignment of error itself, I would at least make it hard for them to punt the issue.
Silly me. First, the opinion says about as little as one can say about those issues. It neither says that they apply, or that they don’t apply. That’s kosher for the court to do. But then, again, at the end of the opinion, they court says (I’ve added the bold):
We find the evidence showed the Library’s footwear policy is related to the governmental interests in preventing injuries to its patrons from documented hazards within the Library, as well as to protect the economic interests of the Library.
How???? I ask again.
In the second assignment of error, I argued that the Fairfield County Library should not have been given a second bite of the apple. I argued, and cited cases and the Rules of Civil Procedure, that the library had its chance to present evidence the first time this case was addressed (in the motions for summary judgment) and they failed to do so. The law is clear:
However, if the moving party [that was me] has satisfied its initial burden, the nonmoving party [the library] then has a reciprocal burden outlined in Civ.R. 56(E) to set 16 forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
This latest opinion mentions nothing about that. They just say that they remanded the case, so the evidentiary hearing was okay.
Anybody reading the opinion would not even know that that had been argued, or that in the first instance the library had not set forth any specific facts.
In the third assignment of error, I argued that there are two separate standards that have to be met for a rule to be valid. The first standard is whether the administrative body has been authorized to make the rule. This is a high standard to meet. As I noted about, there must be the discernible public policy statement describing the need for the rule. Furthermore, under this standard, if there is any doubt in that regard, the doubt should be resolved against the rule.
In my briefs I gave examples of Ohio Supreme Court decisions highlighting exactly that.
Now, look that the appeals court decision. See any discussion about that at all? Nope. All they did was apply the second, much weaker standard, that the rule must be reasonable.
The first standard is a threshold standard. That standard must be reached before even considering the weak, second standard. But that is all this court did, and they did so without even mentioning or analyzing my arguments about the higher standard.
So, nobody reading this opinion will even know about the issues that were important (as far as I can tell). What the court has written sound reasonable on its face, but that is only because of what was omitted. (Yes, one could argue that all that was omitted was irrelevant to the final conclusion so there was no need to mention that, but opinions are supposed to explain, not obscure.)
So, where does that leave me? Dead in the water, yet again. As a matter of responsibility, I will consider appealing to the Ohio Supreme Court, but they have the discretion to decide whether to take a case like this or not, and in general they just see this as not important. See what I wrote about Big Justice vs. Little Justice.
One thing that might help is if I could get an amicus brief in support of them taking the appeal. I would sure appreciate suggestions from you folks as to freedom-loving organizations that might consider submitting such a brief.